In Re Dustin Estep v. the State of Texas ( 2023 )

NUMBER 13-23-00006-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE DUSTIN ESTEP
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Chief Justice Contreras1
Relator Dustin Estep filed a petition for writ of mandamus asserting that the trial
court abused its discretion by issuing temporary orders concluding that his daughter
A.F.L.’s grandparents have standing, appointing them as temporary joint managing
conservators, giving them the exclusive right to designate A.F.L.’s primary residence
without regard to geographic area, and giving Dustin limited possession and access. We
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.1 (requiring the appellate courts to “hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition”); id. R. 47.4 (distinguishing opinions and
memorandum opinions).
conditionally grant the petition for writ of mandamus in part and deny it in part.
I. BACKGROUND
On May 3, 2022, Carl Raymond Lewis filed an original petition in a suit affecting
the parent-child relationship regarding his granddaughter, A.F.L. who was born on June
23, 2021. In terms of standing, Carl alleged that A.F.L. had lived with him for six or more
months. See TEX. FAM. CODE ANN. § 102.003(a)(9). As respondents, he named his
daughter, A.F.L.’s mother, Briana Nicole Lewis, and “alleged father,” Dustin. Carl
suggested that he be appointed as nonparent sole managing conservator of A.F.L. Carl
alleged that he was concerned about A.F.L.’s safety with both parents and asked for them
to have limited visitation with A.F.L. As an exhibit to his petition, Carl attached a December
30, 2021 statement provided by Briana. In the statement, Briana alleged that she was
A.F.L.’s mother and that she was giving “temporary custody” of A.F.L. to her parents,
Maria Dolores Lewis and Carl Raymond Lewis (grandparents). Briana’s statement
ostensibly gave the grandparents “full legal rights” to provide A.F.L. with any necessary
medical care and to enroll her in daycare or preschool. This statement also provided that
Carl and Maria would have the same rights regarding Briana’s older daughter, K.N.W.,
who was born on June 28, 2019, and who is not at issue in this original proceeding.
On May 6, 2022, Carl and Maria filed an amended petition, again asserting
standing based on A.F.L.’s residence with them for six or more months. The amended
petition sought to have them both appointed as nonparent sole managing conservators,
and again stated that there was a concern about A.F.L.’s safety and asked for limited
possession for Briana and Dustin in the form of supervised day visits. The grandparents
requested that Briana and Dustin be ordered not to use alcohol or illegal drugs twenty-
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four hours prior to or during possession.
On May 9, 2022, the trial court signed a temporary order appointing Carl and Maria
as nonparent sole managing conservators. The order states that Dustin’s paternity had
not been established and does not reflect that either Briana or Dustin had appeared in
the case or filed any pleadings.
On May 19, 2022, Briana filed a statement with the court through which she alleged
that:
My name is [Briana] and I am requesting that the petition that was filed
against me be overturned due to the fact that my daughter, [A.F.L.], has not
been living with my parents, [Carl] and [Maria], for more than six months.
She has only been living with them without my presence since the beginning
of 2022. [A.F.L.] is at the age of 11 months, a time in which she is at a
developing stage in her life, [and] as a mother I plan to provide a loving
environment for her, along with her father. A child’s development is
dependent on the involvement and support of both parents. I, [Briana], and
the father, [Dustin], are both united in providing [A.F.L.] with a loving home
and a supportive family structure. Dustin has privately acquired a DNA test
which has proven that he is the father, but it may not be admissible by the
court. If I, [Briana], absolutely must, [I] will request a court ordered DNA test
to prove without question that he is the father of [A.F.L.] so that he will have
legal rights to see our daughter.
On May 19, 2022, the trial court signed an order stating that the May 9, 2022
temporary order was “inadvertently signed,” voided the earlier order, and set an
emergency hearing for May 26, 2022.
At the status hearing held on May 26, 2022, the parties all appeared pro se. 2 The
trial court explained that the May 9, 2022 order was improperly signed and apologized to
the parties for the error. Maria explained to the court that she and Carl were seeking
2 As will be discussed further, the trial court held status hearings during the pendency of these
proceedings on May 26, 2022, August 1, 2022, October 24, 2022, August 31, 2022, and November 29,
2022. The trial court administered the oath to witnesses and took sworn testimony on August 1, 2022 and
November 29, 2022. The remainder of the hearings included non-sworn argument by the parties.
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custody of A.F.L.; that A.F.L. had been living with them for eleven months in Harlingen;
and that Briana had not been living with them since the end of December.
Dustin informed the court that he had not been living with A.F.L., and that he
resided in Tool, which is in Henderson County, but he had “been wanting to get custody”
of his daughter. He explained that he was not designated on A.F.L.’s birth certificate as
her father, and thus he had obtained a private DNA test to establish his paternity. The
test, taken in March, showed that Dustin was A.F.L.’s father.
Briana told the trial court that she “would like for [her] daughter’s father to be able
to definitely have custody of her, so that way they could get to know each other and that
way they can create a bond.” She explained that she was not requesting custody.
Carl explained that Briana had given her parents power of attorney over A.F.L. in
December because she “said [that] she needed to get mental help,” but that she had “not
attempted any kind of counseling.” Carl advised the court that Dustin had known about
the child since Briana was pregnant because “[t]hey were together at the time.” Carl
alleged that Dustin had made no effort to obtain possession of A.F.L. or get to know her.
According to Carl, Dustin said that “he was not ready to be a father when she was born,”
but “now that he is ready, that he wants to come and get her.”
Dustin informed the court that he sent Briana money for A.F.L., and that he was in
contact with Briana until Carl confiscated her phone. Dustin explained that Briana
subsequently contacted him on a different phone and reached out to him to ask him if he
wanted custody of A.F.L.
At the conclusion of the hearing, the trial court stated that it would order a formal
DNA test and noted that the attorney general would be involved in future proceedings.
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The trial court set the next status hearing for August and gave permission for Dustin to
appear by Zoom given that he resided approximately eight hours away.
On June 29, 2022, the Office of the Attorney General filed an intervention in the
suit requesting the court to make orders regarding conservatorship and support for A.F.L.
On August 1, 2022, the trial court held a status hearing. The parties again
appeared pro se and were joined by an amicus attorney and counsel for the attorney
general. At this hearing, the trial court administered the oath to the parties in order for
them to provide testimony. Maria testified that Dustin had contacted them, and she
advised him to come see A.F.L. and let her get to know him; however, Dustin “cut off
contact” and they had not heard from him since that time. She stated that Dustin had not
contacted them since the last hearing and had not asked how A.F.L. was or if she needed
anything.
Briana informed the court that she wished to give Dustin “full custody” of A.F.L.
so that way they have a chance to create a bond with each other considering
the fact that they have not had a chance to yet meet, nor has she, my
daughter, had a chance to meet any of my side of the family, my mother
and my great grandmother, and so on and so forth.
Briana explained that Maria was her stepmother, not her mother. Briana further explained
that she had not seen A.F.L. since March and requested to spend some time with her.
She explained that she had not received mental health care yet “only because [she]
cannot afford it at this time.” Briana explained that she had been working at a Longhorn
Steakhouse since August. She informed the trial court that she had another child, a three-
year-old girl, who was with that child’s father, and she recently made the eight hour trip
to go visit her. She acknowledged that she did not pay child support and denied using
drugs.
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Maria informed the court that Briana had not seen A.F.L. due to her own choices,
and that she was welcome to visit A.F.L. at any time. Carl explained that they told Briana
not to move away from their shared home, but she chose to sign the statement giving
them custody and “hightailed it to her own apartment.” Carl stated that, “[i]nstead of
staying where she had a support system and people to help her find the help she needed,
she ran.” Carl advised the court that they “were getting ready to try to help [Briana] find
counseling,” but she did not contact them.
The trial court embarked on an endeavor to discover whether Briana needed help
with a mental condition or whether it was “an excuse” so that she could “go out and party
with [her] friends.” Carl told the court that he “believe[d] it’s just an excuse because she
showed up at the house with police officers,” and told them that “she no longer needed
help” and that “she felt better.” Maria clarified that Briana “just wanted to get the baby and
take it to [Dustin].” In response to questions from the trial court, Briana stated that she
believed she needed mental health treatment because she had experienced traumatic
events in the past and had been trying to “save up” to obtain treatment. Briana explained
that she “recently” had “been feeling a lot better” than she had in the past and had been
handling matters herself.
The parties received and discussed the official paternity test, which shows that
Dustin is A.F.L.’s father. The trial court reset the hearing to allow the amicus to work with
the parties and allow Briana and Dustin to visit A.F.L. at her grandparents’ home since
she had not seen her mother in some time and because she had never met her father.
On August 31, 2022, the trial court held another status hearing. At this hearing, the
amicus informed the trial court that “miscommunication” had led to the instant legal
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proceeding. The amicus had spoken with Briana, who acknowledged that A.F.L. was
doing well with her grandparents, but Briana wished for A.F.L. to be with Dustin, and
Briana wanted to give Dustin “that opportunity,” and the amicus agreed. According to the
amicus, this plan was not communicated to the grandparents. At this point, A.F.L. had not
met Dustin, so the amicus planned for a transitional period for the parties to initiate
contact. The amicus explained that she had spoken with Dustin, and his mother, and they
had a large familial support system. The amicus suggested that the parties meet half-way
between their homes for preliminary visitation. At this point, however, Carl interjected,
objecting to the visitation plan because Briana and Dustin had not contacted him, and
because A.F.L. did “not do well with” meeting too many people at once. The amicus
ultimately suggested having Dustin and his mother visit A.F.L. at her grandparents. The
trial court informed the parties that he would “allow” Dustin to have visitation with A.F.L.,
but would require Dustin to travel the eight hours to do so.
On October 24, 2022, the trial court held another status hearing. The amicus
informed the court that Dustin had visited A.F.L. twice since the last court date. The first
time, Dustin visited with his mother, and the second time with a sister and a niece. The
amicus stated that Dustin “has a big family support system”; that the visits went well
according to “everybody”; and that Dustin brought toys and clothes for A.F.L. The amicus
referred to difficulties in visitation due to the geographic distance between the parties, but
stated
there is nothing that I’ve seen of concern for dad having the child. He came
down here, he brought stuff. He has his family. He has a nursery. He has a
support system set up. It seems that he was not involved in the beginning.
A lot of it has do to with some issues that mom’s having.
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The amicus advised the trial court that she recommended a visitation schedule that
allowed mother supervised visits and provided the grandparents with access. She stated
that there had been “good communication” between Dustin and the grandparents, but
that “a lot of animosity” had “built up during some of the visits.” She advised Dustin that,
had it not been for the grandparents, A.F.L. would be in foster care. The trial court asked
the parties to let him know what they wanted. Carl stated that he and Maria wanted what
was best for A.F.L., and that A.F.L. would cry if separated from Maria. Carl stated, “We’re
not against [Dustin], it’s just I don’t think either one of them is really ready for her
completely to be with him, considering there hasn’t even been any overnight visitations.”
Briana told the trial court:
I would definitely like for the dad and the baby to have a really good bond. I
know that it is something that is going to take a little while, especially since
he wasn’t able to see her during the first year of her life. But, eventually,
that is something that I would love for them to have, especially since he is
the dad. And I would love to—I would love for her to grow up knowing all of
her family, not just one side. She’s—I know she’s still young and she’s got
her whole life ahead of her, so it’s—I think it would be best for her to—to
definitely be able to meet the rest of her family and not just the family that’s
down here in the Valley.
The trial court asked Briana about her own relationship with A.F.L., and she stated,
“It’s not that I don’t’ want her to be with me,” and “I do want that relationship with her, as
well,” but “I just know I’m not in the right mental state to have full custody of her at this
moment.”
The trial court then asked Dustin for his views, and Dustin informed the court that:
And I just want to kind of agree with everybody. We all want what’s best for
her. And I think it would be nice to get her early, so that way it wouldn’t
traumatize her as much, in a way, and she would be able to grow close to
me, I would think. I would like it if she did have a relationship with all of us.
We’re all her family. And she does have a bunch of other family where I live
at. So[,] I think it would be—I think it would be the best thing to have her
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down there. And if they want visits, they can have visits. I wouldn’t have
problems with that at all. I know it’s a long road that we’re working at here.
At the conclusion of the hearing, the trial court told the parties that it appeared that
they would need to hold a trial regarding custody because both the grandparents and
Dustin wanted to obtain custody of A.F.L. The grandparents and Dustin informed the trial
court that they planned to retain counsel.
On November 7, 2022, Dustin and Briana filed a counter-petition seeking custody
of A.F.L. On November 23, 2022, Dustin filed an objection to the grandparents’ suit for
conservatorship or possession and access, requested dismissal of their suit for lack of
standing, and requested temporary orders appointing Dustin and Briana as temporary
joint managing conservators of A.F.L.
On November 29, 2022, the trial court held another status hearing. This time, the
grandparents and Dustin were represented by counsel. The amicus advised the court that
allowing the parties to agree as to visitation had not worked well because the parties had
some conflicts. After hearing Dustin’s arguments pertaining to standing, the trial court
concluded that the “grandparents have standing,” but wanted to address “the parameters
of their possession and dad’s access.” The trial court ultimately allowed Dustin’s counsel
to call witnesses, and at this hearing, the parties testified under oath.
Dustin testified that he dated Briana, and he was happy that she was pregnant and
was ready to be a father. However, their relationship deteriorated, and Briana moved into
her mother’s home. Subsequently, Briana’s relationship with her mother deteriorated, and
Briana moved in with Carl and Maria. Dustin told Briana that he did not want her to move
in with them. He told her he would send money if she needed it, and he wanted her to
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move back to his vicinity. He testified that he and Briana intended for Briana to move
back, and they planned to co-parent.
Dustin lost contact with Briana in October of 2021. He looked for her on social
media but did not find her. They did not reconnect until February of 2022 when she
messaged him. Briana told him she gave temporary custody of A.F.L. to Carl and she
asked if Dustin wanted custody. Dustin called Carl, who told him to get a DNA test. Dustin
did so privately, and the DNA test showed that Dustin was A.F.L.’s father. Dustin told Carl
that he wanted to pick up A.F.L., but Carl told him that possession had to be determined
“legally.” Dustin testified that he has prepared a nursery for A.F.L. and has been going to
see her every couple of weeks, driving eight hours each way. According to Dustin, A.F.L.’s
grandparents have not cooperated with his requests for visitation and would not allow
overnight visits. Dustin testified that he works at Stewart Toyota as a lube and tire
technician, his “set” pay is $1,150 every two weeks, and he can earn additional money if
he works extra hours or makes sales. Dustin explained that he is seeking custody of
A.F.L. because it is in her best interest. Dustin said that A.F.L. has a sister and many
family members in Henderson County. Dustin stated that while he is working, his mother,
sister, and stepsister can watch A.F.L.
Dustin acknowledged that A.F.L. was born in Cameron County on June 23, 2021
and has resided there since that time. Dustin did not contact Carl regarding A.F.L. until
March 2022. Dustin further admitted using marijuana in the past but stated that he had
stopped using marijuana six months prior to the last hearing in August. Dustin denied
using any other drugs. Dustin acknowledged that A.F.L.’s grandparents had “done a good
job raising her,” but he was “ready to take custody of her.”
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Briana testified that she signed the December 30, 2021 statement because she
was suffering from post-partum depression, so she “was not in the best state of mental
health,” and she asked Carl and Maria for help taking care of her children. According to
Briana, she did not move out of their home until January 8, 2022. Briana believed that
she asked to take back custody or possession of her children in mid-January or perhaps
early February. Maria told Briana that she could not have the girls “because of the
neighborhood that [Briana] lived in.” After that, Briana attempted to visit the children every
day, or three or four times each week. Briana testified that Carl and Maria “talked down
on” her and they said “negative” things to her and about her. She thus explained that she
reached out to Dustin toward the end of February or beginning of March.
Briana testified that she did not know her father and stepmother had planned to
file a lawsuit seeking custody of A.F.L. until after they filed suit. She filed a response with
the court around May 19, 2022. She did not agree with their request for custody. At that
time, and at the time of the hearing, Briana was employed as a fry cook at Longhorn
Steakhouse. Briana clarified that she does not take drugs and has not been on drugs.
Briana expressed concerns about A.F.L. living with Carl and Maria because Maria
engaged in a fistfight with another woman outside of the house where she and her
children were and did so in front of her minor cousins. Further, Briana explained that
Maria’s brother had approached her inappropriately in the past regarding developing a
relationship with her. Briana expressed concern that Maria will not protect her children,
and she is concerned that the people that Maria allows around A.F.L. are not appropriate.
Briana testified that Carl’s paternal uncle was convicted for sexually assaulting her, and
Carl knew about this, and “he does not believe me.”
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Briana testified that she “[d]efinitely” wants A.F.L. to be placed with Dustin because
their visitations have gone so well. Briana testified that A.F.L. was “smiling, laughing the
entire time with him,” and “it felt right for her to be with him.” Briana further testified that,
in addition to the father-daughter relationship, she also wanted Dustin to have custody of
A.F.L. because A.F.L. would be much closer to her sister, K.N.W. Briana explained that
K.N.W.’s father has custody of her and lives near Dustin, and Briana lives approximately
twenty minutes away. If Dustin had custody of A.F.L., the sisters would only be twenty
minutes apart rather than eight hours. Briana testified that she believes that it is in A.F.L.’s
best interest that she live with Dustin and that they co-parent.
Briana acknowledged that she told the court at the last hearing that she was not
mentally able to take care of A.F.L. and acknowledged that A.F.L. has lived with Carl “at
this particular residence for almost a year now.” She acknowledged that she has not
consulted a doctor and is not on medication for her mental health problems. Briana further
confirmed that she only intended to leave A.F.L. there temporarily, and it was not
supposed to be permanent. She further confirmed that in February 2021, she gave
possession of her older daughter, K.N.W., to that daughter’s father.
Maria testified that when Briana gave them A.F.L., the arrangement was supposed
to be temporary and that they were “helping her out taking care of the girls.” She denied
that Briana had asked for A.F.L. to be returned to her. She personally has no problems
with Dustin and would have no objection if he were to be awarded custody. However, she
was unsure whether A.F.L. could handle such a transition. Maria testified that she thought
that Dustin “would have to take baby steps to get to know her more.” She conceded that
she denied Dustin visitations with A.F.L. She further conceded that she had “no concerns”
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about Dustin, although she alleged that he should be subject to a drug test because she
could “smell the weed” on Dustin’s jacket the last time he picked A.F.L. up for visitation in
November. 3 Maria admitted that she had engaged in a fistfight, as alleged by Briana, but
claimed that she was defending one of her nieces from an older woman. Maria alleged
that A.F.L. was crying in the middle of the night after a recent visit with Dustin. She agreed
that children should be placed with fit parents over grandparents, and when asked if
Dustin is a fit parent, stated that she “[does not] really know him.” In terms of evidence
that A.F.L. would be placed in harm physically or emotionally if she were to be placed
with Dustin, Maria testified that she was concerned that Dustin might allow Briana to have
possession of her. Maria denied that she ever kept Briana’s children away from her and
denied that Briana ever asked for custody or possession of them.
On January 4, 2023, the trial court signed temporary orders. The trial court’s
temporary orders: (1) conclude that the grandparents have standing to petition for
conservatorship; (2) appointed Dustin, Briana, Carl, and Maria as temporary joint
managing conservators; (3) gave the grandparents the right to designate the primary
residence of A.F.L. without regard to geographic area; (4) allowed Dustin possession for
weekend visits on the first, third, and fifth Friday of each month but required the visits to
take place in Cameron County, Texas; and (5) gave the grandparents the right to possess
A.F.L. at all times that are not specifically designated as periods of possession for the
parents. The temporary orders did not include provisions regarding Briana’s ability to
possess or visit A.F.L.
3The record does not indicate whether the parties were subject to drug testing or include the results
of any such testing.
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This original proceeding ensued. Dustin raises three issues asserting that the trial
court abused its discretion by: (1) entering temporary orders granting the grandparents
joint managing conservatorship with Dustin and Briana and awarding the grandparents
the exclusive right to designate A.F.L.’s residence when there was no evidence to rebut
the fit parent presumption that the parents be appointed joint managing conservators or
that appointment of the parents as joint managing conservators would significantly impair
A.F.L.’s physical or emotional development; (2) finding that the grandparents had
standing to seek conservatorship of A.F.L. over Dustin’s objection when the grandparents
failed to meet their burden of proving that Dustin was an unfit parent and that denying
grandparent’s conservatorship would significantly impair A.F.L.’s emotional or physical
wellbeing and issuing temporary orders granting the grandparents joint managing
conservatorship with Dustin and Briana and awarding the grandparents the exclusive right
to designate A.F.L.’s residence; and (3) failing to deny the grandparents’ petition seeking
custody because their petition did not have an affidavit that alleged sufficient facts in
compliance with Texas Family Code § 153.432(c). See TEX. FAM. CODE ANN.
§ 153.432(c). Dustin further sought emergency relief to stay the trial court’s order.
This Court granted Dustin’s request for emergency relief and requested and
received a response to the petition for writ of mandamus from the grandparents. The
grandparents allege that they filed suit under the general standing statute, § 102.003,
because they had possession of the child for more than six months. See id.
§ 102.003(a)(9). In answer to the contention that the affidavit was legally and factually
insufficient under § 153.432(c), the grandparents allege that the trial court had sufficient
facts to determine standing based on previous hearings. See id. § 153.432(c).
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II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840.
Because a trial court’s temporary orders are not appealable, mandamus is an
appropriate vehicle for review. See In re Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007)
(orig. proceeding) (per curiam); In re Walser, 648 S.W.3d 442, 445 (Tex. App.—San
Antonio 2021, orig. proceeding); In re Strickland, 358 S.W.3d 818, 820 (Tex. App.—Fort
Worth 2012, orig. proceeding); In re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App.—
Houston [14th Dist.] 2003, orig. proceeding).
III. STANDING
We take Dustin’s issues out of order. Dustin’s second issue pertains to standing.
“[S]tanding involves a threshold determination of whether a plaintiff has a sufficient
‘justiciable interest’ in the suit’s outcome to be entitled to a judicial determination.” In re
H.S., 550 S.W.3d 151, 155 (Tex. 2018) (quoting Austin Nursing Ctr. v. Lovato, 171 S.W.3d
845, 848–49 (Tex. 2005)). Unless a party has standing, the trial court lacks subject matter
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jurisdiction over the case, and the merits of the claims at issue cannot be litigated or
determined. In re H.S., 550 S.W.3d at 155.
In his second issue, Dustin asserts that the trial court abused its discretion by
determining that the grandparents had standing to seek conservatorship of A.F.L.
because A.F.L.’s grandparents failed to meet their burden to prove that denying their
request would significantly impair the child’s emotional or physical well-being under
§ 102.004 of the family code. See TEX. FAM. CODE ANN. § 102.004. In contrast, the
grandparents allege that they possessed general standing under § 102.003 of the family
code. See id. § 102.003. We review both provisions.
A. Standard of Review
Standing implicates a court’s subject-matter jurisdiction and presents a question
of law that we review de novo. In re H.S., 550 S.W.3d at 155; In re Gandy, 649 S.W.3d
921, 924 (Tex. App.—Eastland 2022, orig. proceeding); In re T.H., 650 S.W.3d 224, 235
(Tex. App.—Fort Worth 2021, orig. proceeding). When determining whether standing
exists, we construe the pleadings in the light most favorable to the plaintiff and consider
evidence offered by the parties. In re H.S., 550 S.W.3d at 155; In re Gandy, 649 S.W.3d
at 925. We do not examine whether the plaintiff will prevail on the merits. See In re H.S.,
550 S.W.3d at 155; In re Torres, 614 S.W.3d 798, 801 (Tex. App.—Waco 2020, orig.
proceeding). In evaluating standing, we construe the pleadings in the plaintiff’s favor, but
we also consider relevant evidence offered by the parties. In re H.S., 550 S.W.3d at 155;
In re Gandy, 649 S.W.3d at 925. Because standing to bring a suit affecting the parent-
child relationship is governed by the Texas Family Code, we apply principles of statutory
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interpretation in determining whether a plaintiff falls within the category of persons who
possess standing. In re H.S., 550 S.W.3d at 155.
B. Section 102.004
Dustin contends that the grandparents lack jurisdiction under § 102.004 of the
family code which concerns “Standing for Grandparent or Other Person.” TEX. FAM. CODE
ANN. § 102.004. This section provides:
(a) In addition to the general standing to file suit provided by Section
102.003, 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:
(1) the order requested is necessary because the child’s present
circumstances would significantly impair the child’s physical
health or emotional development; or
(2) both parents, the surviving parent, or the managing
conservator or custodian either filed the petition or consented
to the suit.
(b) An original suit requesting possessory conservatorship may not be
filed by a grandparent or other person. However, the court may grant
a grandparent or other person, subject to the requirements of
Subsection (b-1) if applicable, deemed by the court to have had
substantial past contact with the child leave to intervene in a pending
suit filed by a person authorized to do so under this chapter if there
is satisfactory proof to the court that appointment of a parent as a
sole managing conservator or both parents as joint managing
conservators would significantly impair the child’s physical health or
emotional development.
(b-1) A foster parent may only be granted leave to intervene under
Subsection (b) if the foster parent would have standing to file an
original suit as provided by Section 102.003(a)(12).
(c) Possession of or access to a child by a grandparent is governed by
the standards established by Chapter 153.
Id.
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C. Section 102.003
In contrast, the grandparents contend that they possess standing under § 102.003.
See id. § 102.003. Section 102.003 provides general standing to any person who falls
into one of its fourteen categories. Id. § 102.003(a)(1)–(14). As relevant here, subsection
(a)(9) provides standing for “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
[ninety] days preceding the date of the filing of the petition.” Id. § 102.003(a)(9). “In
computing the time necessary for standing under Subsection[] (a)(9) . . . , 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). We determine the child’s principal residence by looking at the
following factors: (1) whether the child has a fixed place of abode within the possession
of the party, (2) occupied or intended to be occupied consistently over a substantial period
of time, and (3) which is permanent rather than temporary. In re Kelso, 266 S.W.3d 586,
590 (Tex. App.—Fort Worth 2008, orig. proceeding).
Subsection (a)(9) does not include nonparents who do not share a principal
residence with the child, regardless of how extensively they participate in caring for him
or her. In re H.S., 550 S.W.3d at 156. The care, control, and custody exercised under
subsection (a)(9) does not need to be at the exclusion of the parents. Id. at 160. Under
this section, a nonparent is granted standing if, for a six-month period, “the nonparent
served in a parent-like role by (1) sharing a principal residence with the child, (2) providing
for the child’s daily physical and psychological needs, and (3) exercising guidance,
governance, and direction similar to that typically exercised on a day-to-day basis by
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parents with their children.” In re H.S., 550 S.W.3d at 159–60. A nonparent does not need
to have exercised ultimate legal authority to control the child and the parents do not need
to have wholly relinquished their parental rights and responsibilities. Id. at 160.
D. Analysis
Reviewing both § 102.004 and § 102.003, we conclude that the grandparents
established standing as persons who had actual care, control, and possession of A.F.L.
for at least six months ending not more than ninety days preceding the date of the filing
of the petition. See TEX. FAM. CODE ANN. § 102.003(a)(9). Here, A.F.L. was born on June
23, 2021. It is uncontested that from the date of her birth through the events at issue here,
A.F.L. resided with Carl and Maria, and Carl and Maria assisted Briana by serving in
parent-like roles to A.F.L. Briana resided at the house with A.F.L., Carl, and Maria from
June 23, 2021 until either December 30, 2021, or the first week in January 2022. Briana
testified that for the first three months after A.F.L.’s birth, while she was not working, she
took care of A.F.L.’s needs. However, Briana conceded that in August of 2021, A.F.L.’s
crib was moved to Carl and Maria’s room because Briana “couldn’t take it” and “[was] not
in control of [herself] . . . mentally.” Briana’s December 30, 2021 statement provides that
she gave “temporary custody” of A.F.L. to Carl and Maria with the rights to provide A.F.L.
with medical care and enroll her in any necessary preschool or daycare. Carl filed his
original petition on May 3, 2022 and Carl and Maria filed their amended petition on May
6, 2022. These petitions both stated that A.F.L. had lived with Carl, or Carl and Maria, for
six or more months.
In the trial court, Briana disagreed that that A.F.L. had been living with Carl and
Maria for more than six months as required under our standing analysis, because “[s]he
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has only been living with them without my presence since the beginning of 2022.”
However, the family code does not require Briana to have left the premises, or to have
wholly ceded her parental rights and responsibilities, in order for Carl and Maria to
possess standing. See In re H.S., 550 S.W.3d at 160. In short, Carl and Maria played
parent-like roles in A.F.L.’s life for more than six months before they filed their original
and amended petitions. See id. Thus, the trial court may reasonably have concluded that
Carl and Maria exercised care, custody, and control of A.F.L. for the relevant statutory
period and possessed standing. See TEX. FAM. CODE ANN. § 102.003(a)(9); In re H.S.,
550 S.W.3d at 156, 160. Accordingly, we overrule Dustin’s second issue pertaining to
standing.
IV. SECTION 153.432 AFFIDAVIT
In his third issue, Dustin contends that the trial court abused its discretion in failing
to deny the grandparents’ request for custody because their petition did not have an
affidavit that alleged sufficient facts in compliance with Texas Family Code § 153.432(c)
to allow the trial court to hold a hearing.
A. Section 153.432
Section 153.432 of the family code allows a grandparent to file an original suit or
a suit for modification “request[ing] possession of or access to a grandchild in a suit filed
for the sole purpose of requesting the relief, without regard to whether the appointment
of a managing conservator is an issue in the suit.” TEX. FAM. CODE ANN. § 153.432(a), (b).
However, the grandparent
must execute and attach an affidavit on knowledge or belief that contains,
along with supporting facts, the allegation that denial of possession of or
access to the child by the petitioner would significantly impair the child’s
physical health or emotional well-being. The court shall deny the relief
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sought and dismiss the suit unless the court determines that the facts stated
in the affidavit, if true, would be sufficient to support the relief authorized
under [§] 153.433.
Id. § 153.432(c); see TEX. GOV’T CODE ANN. § 311.016(2) (“‘Shall’ imposes a duty.”).
B. Analysis
On May 6, 2022, the grandparents filed an amended petition asking for them to be
named as “Nonparent Sole Managing Conservator” of A.F.L., advising the court that they
were “concerned about the safety” of A.F.L., and requesting that the parents’ possession
be limited to day visits, be supervised, and that parents be ordered not to use alcohol or
illegal drugs prior to possession. Section 153.432 applies to a grandparent’s suit
requesting possession of or access to a grandchild—not to a suit seeking a
conservatorship. See id. § 153.432(a); see also In re M.L.R.S., No. 14-20-00584-CV,
2022 WL 2165539, at *3 (Tex. App.—Houston [14th Dist.] June 16, 2022, no pet.) (mem.
op.) (“[S]ection 153.432 applies to a grandparent’s suit requesting possession of or
access to a grandchild—not to a suit seeking a conservatorship.”); In re G.B., No. 05-21-
00463-CV, 2021 WL 4071152, at *2 n.4 (Tex. App.—Dallas Sept. 7, 2021, orig.
proceeding) (mem. op.) (“Because the trial court found that Grandmother has standing
under [§] 102.003 and we conclude this was not in error, we need not consider whether
Grandmother also has standing under [§§ 153.433-.434].”); In re M.B., No. 09-19-00247-
CV, 2019 WL 4865197, at *5 (Tex. App.—Beaumont Oct. 3, 2019, no pet.) (mem. op.)
(concluding that § 153.432 did not apply to cases involving conservatorship claims); In re
C.D.M., No. 11-15-00319-CV, 2016 WL 5853261, at *1 (Tex. App.—Eastland Oct. 6,
2016, no pet.) (mem. op.) (concluding that the grandparents’ “satisfaction of the general
standing statute . . . relieved them from having to comply with the additional requirements
of [§] 153.432”).
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Because the grandparents established standing under the general standing statute
and they sought conservatorship, they were not required to file an affidavit. We overrule
Dustin’s third issue contending otherwise.
V. FIT-PARENT PRESUMPTION AND SIGNIFICANT IMPAIRMENT
By his first issue, Dustin contends that the trial court abused its discretion by
entering temporary orders granting the grandparents joint managing conservatorship and
awarding the grandparents the exclusive right to designate the residence of A.F.L. when
there was no evidence to rebut the fit parent presumption that the parents be appointed
joint managing conservators or that appointment of the parents as joint managing
conservators would significantly impair the child’s physical or emotional development.
Dustin contends that he is entitled to a “fit parent” presumption under Texas Family Code
§ 153.131, and there was no evidence presented rebutting that presumption or that the
A.F.L. would suffer significant impairment if Dustin were to be awarded custody. The
grandparents do not directly address this issue, but instead simply reiterate that they had
standing to bring suit under §102.003. See TEX. FAM. CODE ANN. § 102.003.
A Fit Parent Presumption
“[T]he United States Constitution ‘protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.’” In re C.J.C., 603
S.W.3d 804, 807 (Tex. 2020) (orig. proceeding) (quoting Troxel v. Granville, 530 U.S. 57,
66 (2000)). Thus, to protect this right, we apply a presumption that a fit parent acts in the
best interest of their child. See id.; In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Lewelling
v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). The Texas Family Code employs a
“parallel presumption” regarding conservatorship. In re C.J.C., 603 S.W.3d at 807. The
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code provides:
(a) Subject to the prohibition in [§] 153.004, unless the court finds that
appointment of the parent or parents would not be in the best interest
of the child because the appointment would significantly impair the
child’s physical health or emotional development, a parent shall be
appointed sole managing conservator or both parents shall be
appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of
a child as joint managing conservators is in the best interest of the
child. A finding of a history of family violence involving the parents of
a child removes the presumption under this subsection.
TEX. FAM. CODE ANN. § 153.131; 4 see Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014)
(per curiam) (“The law establishes a preference in favor of a child’s parents . . . providing
that courts ‘shall’ appoint the child’s parent . . . as the child’s sole managing
conservator . . . .”). Thus, when both a parent and a nonparent seek conservatorship,
Texas law requires that the child’s parent be appointed sole managing conservator,
absent a proper finding that the appointment of the parent as a sole managing conservator
would significantly impair the child’s physical health or emotional development. See id.;
Danet, 436 S.W.3d at 796.
We review conservatorship determinations for abuse of discretion and reverse only
if the decision is arbitrary and unreasonable. See In re J.A.J., 243 S.W.3d 611, 616 (Tex.
2007); see also Lewelling, 796 S.W.2d at 167 (observing that the “strong presumption” in
favor of parental custody imposes a “heavy burden on a nonparent” and that “[i]t is no
longer adequate to offer evidence that the nonparent would be a better custodian of the
4 Section 153.131 is expressly made subject to Family Code section 153.004, which provides
another exception to the parental presumption. See id. § 153.131(a). Section 153.004(b) concerns cases
where “credible evidence is presented of a history or pattern of past or present child neglect, or physical or
sexual abuse by one parent directed against the other parent, a spouse, or a child.” Id. § 153.004(b); see
In re J.J.G., 540 S.W.3d 44, 56 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). No one alleges that this
section is relevant to this case.
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child”). Our ultimate consideration is the best interest of the child. 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.”). “For a nonparent to overcome the presumption that it is in the child’s best
interest to be in a parent’s custody, there must be evidence of specific and identifiable
conduct by the parent that is likely to cause harm to the child’s physical health or
emotional development.” In re A.D.T., 588 S.W.3d 312, 317 (Tex. App.—Amarillo 2019,
no pet.); see Lewelling, 796 S.W.2d at 167 (requiring “evidence of specific acts or
omissions of the parent that demonstrate an award of custody to the parent would result
in physical or emotional harm to the child”). The evidence cannot merely raise a suspicion
or speculation of possible harm. See In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—
El Paso 1999, no pet.). “Acts or omissions that constitute significant impairment include,
but are not limited to, physical abuse, severe neglect, abandonment, drug or alcohol
abuse, or immoral behavior by the parent,” and “[t]he material time to consider is the
present, and evidence of past conduct may not, by itself, be sufficient to show present
unfitness.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.). “Other
considerations may include parental irresponsibility, a history of mental disorders and
suicidal thoughts, frequent moves, bad judgment, child abandonment, and an unstable,
disorganized, and chaotic lifestyle that has put and will continue to put the child at risk.”
Id.The government may not “infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge believes a ‘better decision’ could be
made.” In re Derzapf, 219 S.W.3d at 333 (quoting Troxel, 530 U.S. at 72–73). “[S]o long
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as a parent adequately cares for his or her children (i.e., is fit), there will normally be no
reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper,
189 S.W.3d 777, 778 (Tex. 2006) (orig. proceeding) (per curiam) (quoting Troxel, 530
U.S. at 68). Thus, evidence that a “nonparent would be a better custodian of the child” is
not adequate to meet the statutory burden. Lewelling, 796 S.W.2d at 167; see In re
B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet. denied).
B. Analysis
Under the family code, the trial court was required to appoint a parent as sole
managing conservator or both parents as joint managing conservators of A.F.L. unless
the appointment “would not be in the best interest of the child because the appointment
would significantly impair the child’s physical health or emotional development.” TEX. FAM.
CODE ANN. § 153.131; see Danet, 436 S.W.3d at 796. The grandparents had the burden
to overcome the parental presumption imbedded in § 153.131. However, in the trial court,
the grandparents neither asserted that Dustin was an unfit parent nor that appointing him
as conservator would significantly impair A.F.L.’s physical health or emotional
development. Nor do the grandparents contend otherwise in this original proceeding.
Implying all necessary findings in favor of the trial court’s temporary order, the
evidence presented at the hearings does not rise to the level that could support the
temporary order under § 153.131. Put simply, there is no evidence of specific acts or
omissions of Dustin that demonstrate that an award of custody to him would result in
physical or emotional harm to A.F.L. See id. Without evidence to support any finding that
appointing Dustin as A.F.L.’s conservator would significantly impair her physical health or
emotional development, we conclude the trial court erred. We sustain Dustin’s first issue
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presented in this original proceeding.
VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that Dustin has met his burden to
obtain relief, in part, as to the trial court’s award of conservatorship. In so ruling, we note
that the record indicates that all parties have A.F.L.’s best interests at heart, and we trust
that they will work together in the future to ensure her well-being.
We lift the stay previously imposed in this case. We conditionally grant the petition
for writ of mandamus, in part, and direct the trial court to vacate its award of
conservatorship and enter an order in accordance with this memorandum opinion. We
deny mandamus relief, in part, as to Dustin’s requested relief pertaining to standing. Our
writ will issue only if the trial court fails to comply.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
24th day of February, 2023.
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