in the Interest of B.A.G., a Child ( 2013 )

Opinion flied January 31, 2013
(Eleventh QEnurt of appeals
No. 11-11-00354~CV
IN THE INTEREST OF B.A.G., A CHILD
0n Appeal from the County Court at Law No. 2
Ector County, Texas
Trial Court Cause No. CC2—15,284
MEMORANDUM OPINION
This case involves a suit affecting the parent-child relationship brought by nonparents in
which the trial court dismissed the suit for lack of standing. The principal issues presented in
this appeal are ( 1) what is the relevant time period for assessing Whether a party has had six
months of “actual care, control, and possession” of a child under Section 102.803(a)(9} of the
Texas Famiiy Code and (2) Whether the nonparents had “actual care, control, and possession” fer
the requisite six months, TEX PAM. CGSE § 102.003(a){9) {West Supp. 2012). The trial
court leaked only to the sixthmonth plus ninetyday peried that immediateiy preceded the filing
of the petition. We disagree with the trial court’s construction} reverse its judgment in which it
dismissed appeilant’s suit for lack of standing, and remand for further proceedings.
T he material facts are undisputed. BAG. was born in 1999. Chad Edward Gray and
Marsha Bartlett are BACKS parents. In 2002, Bartlett; Gray, and B.A.G.’s paternal
grandmother, Rhonda Scott, were appointed joint managing conservators of BAG. The trial
court named Scott as the joint managing conservator who had the exclusive right to designate the
childis primary residence within Ector County, Texas. Scott, however, resided in Harlingen,
Texas, and she designated the home of BAGfs great-grandparents, Theron and Jimmy, as
BAG.’s primary residence. In its agreed final decree of divorce, the trial court ordered that
child support he paid to Scott in the amount of $313.86 each month; Gray and Bartlett were each
responsible to pay one~half of that amount. In addition, at Scottis behest, the trial court ordered
that Bartlett submit to and pay for random urinalysis.
Carrie Ann and Dennis Lynn Shaver‘s son and BAG. were friends from school, and the
Shavers initially met and got to know Jimmy and Theron when the boys wanted to stay overnight
together. Later, in July 2009, Theron had a stroke, and BAG. began primarily living with
Carrie and Dennis. During this time, and although BAG. was living with Carrie and Dennis,
Jimmy took BAG. to church with her on Sundays and Wednesdays. After Theron returned
home from the hospital, BAG. went back to Jimmy and Theron’s home. However, Theronis
feeding tube upset BA.G., and he quickly returned to live in the Shavers’ home. Theron died in
December 2009.
After Theron’s death, both Jimmy and BAG. struggled to adjust. During this time,
BAG. spent three to four nights each week with Jimmy, but both Jimmy and BAG. had a lot of
“down days.” When he began staying with the Shavers, BAG. initially brought a backpack of
clothes with him, but as the need arose, the Shavers purchased additional clothes and toys.
Jimmy also left her home unlocked so that BAG. could get additional things to take to the
Shavers’ at any time. The Shavers cared for BAG. half of the time from Theron’s death in
December 2009 until Jimmy had a stroke in May 2010. Jimmy called the Shavers on her way to
the hospital and asked them to care for BAG. BAGfs paternal aunt, Melissa Kelley, later
asked the Shavers to keep BAG. until the end of the school year. Kelley picked up BAG. on
the last day of school, and BAG.’s furniture was moved from Jimmy’s house to Kelley’s house.
A week later, the Shavers picked up BAG. to leave for their family vacation on
Memorial Day weekend. Scott called the Shavers and said that BAG.’s mother would pick him
up for visitation when they returned. Although she did not advise the Shavers, Scott intended for
BAG. to stay with Bartlett. Later that night, however, Bartlett called the Shavers crying. She
was hysterical because BAG. was upset; BAG. had never lived with her and had always been
The three months that BAG. spent with his mother, from June 2010 through August
20H), appear to be a trial period. As part of the agreed divorce decree, the mother agreed to
submit to random urinalysis upon Scottis demand, which we note as background information to
assess the intent of the parties. B.A.G.’s furniture was moved to Kelley’s home after Jimmyis
stroke, but it was not moved to the mother’s residence at any time.1 When the mother called the
Shavers on the first evening, she was “hysterical” and crying; BAG. was upset because he had
always been told that “he couldn’t go around her.” Regardless, the Shavers were told that
“[t]hey were going to give {the mother] a try with [B.A.G.}.” Unfortunately, “CPS got
involved,” and Scott sent BAG. to live with Gray. The evidence suggests that B.A.G.’s
interlude in his mother’s home was intended to he a temporary or trial period.
Similarly, the time that BAG. spent with his father during September and October 2010
also suggests a trial period. After Gray had possession of BAG. for one night, he called the
Shavers to ask for their continued help due to Gray’s long work hours as a car salesman. BAG.
spent up to six nights a week with the Shavers. Carrie testified that she called Gray “three or
four nights” each week and that Gray would explain that “he had to work late to sign a customer
or had to drive out of town. It compounded from there, so we would quit calling him.” The
Shavers picked up BAG. from school each day, ensured that he completed his homework, and
provided him with food and clothes. The time that BAG. spent with the Shavers While Gray
was at work could constitute child care and evince intent for a temporary arrangement, but
Gray’s actions before, during, and after this period of possession preclude such a conclusion.
Gray lived in Jimmy‘s home before her death, but Carrie testified that Gray “was working all the
time, partying, and not spending any time with [B.A.G.].” During his possession, Gray never
moved B.A.G.’s furniture to Gray’s residence,2 and BAG. left his clothes and other possessions
at the Shavers’ home. While the Shavers had BAG. less often when Grayis girlfriend lived
with him, when she moved out, Gray quickly left BAG. in Kelley’s care. Carrie testified that
Gray never called or visited BAG. during any of the periods that he stayed with the Shavers.
IThe trial court stated in its findings of fact that the furniture was moved to Bartlett’s home. but the only testimony
relating to the furniture was that the furniture was moved from Jimmy’s house to Kelleyis house.
ZGray’s attorney argued that the child’s furniture had been moved to Gray's home, but there is no evidence in the
record to support this argument. Carrie testified that the furniture was moved to Kelley’s home, and neither Kelley nor Gray
testified as to the furniture and whether it was moved again.
11
The evidence does not Show that Gray intended to consistently care and provide for BAG. over
a substantiai period of time.
Finally, except for one week, B.A.G.’s principal residence from March 24, .2011, until the
trial court’s final order on August 18, 201i, was the Shavers’ home. After BAG. was removed
from Bartlettls care and relinquished by Gray, Kelley again called the Shavers and asked if they
would “take {Bu/3.6.] back in [their] home” because she couid not financially support the child.
When Kelley testified, she agreed that BAG. had been bounced around before he finally landed
at the Shavers’ home. The parties do not seem to dispute that, during this period, the Shavers’
home was B.A.G.’s principal residence. Moreover, the trial court temporarily ordered that
BAG. remain with the Shavers, and except for the week BAG. spent in Harlingen, BAG.
stayed with the Shavers until the trial court issued its final order. Thus, the Shavers’ home was
B.A.G.’s principal residence for an additional four-month period.
In addition to the possession arrangement, the parties’ actions are evidence that the
parties intended that BAG. consistently reside with the Shavers over a substantial period of
time. For example, when Jimmy suffered a massive stroke in May 2010, she called the Shavers
on the way to the hospital; Kelley later asked the Shavers to keep BAG. through the remainder
of the school year, and they did. B.A.G. also joined the Shavers for a scheduled family vacation.
When Scott sent BAG. to live with Bartlett under the guise of visitation, BAG. realized that on
the first night and became upset; Bartlett called the Shavers for help. After Jimmy passed away,
after CPS was involved with Bartlett, and after Kelley said she could not financially care for the
child, BAG. was always returned to the Shavers. Thus, the Shavers’ home constituted B.A.G.’s
principal residence for at least six months, so we must assess Whether the Shavers had “actual
care, control, and possession” during these periods of time.
Scott argues that, “if the legislature had intended [Section] 10200303) to completely
discard the requirement of continuous or consecutive periods [oil care, control, and possession
immediately preceding the filing of a SAPCR petition,” then, the statute would say “at all times
preceding” filing of suit instead of “the relevant time period preceding” filing of suit. At the
temporary hearing and on appeal, Scott focuses on the period that BAG. primarily lived with
Gray and his girlfriend to defeat the Shavers’ standing. But Section 10200383) expressly
instructs that “the court may not require that the time be continuous and uninterrupted.” Thus,
since the legislatures addition of Section 10200303), evidence of a break between periods of
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possession does not defeat standing; instead} a substantiai break is more probative as to the best-
interest—of—thechiid inquiry.
As discussed above: any person who has “actuai 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” has standing. Section 102.003(a)(9). The supreme court has warned the lower courts
not to he “mechanistic” when analyzing standing under Section 102.003. Jones. 969 S.W.2d at
433. This requires a fact-specific analysis that we must resolve on a case-hy-case basis. In re
KB., 300 S.W.3d 1} 4 (Tex. App—«San Antonio 2009, pet. denied). Many courts have
concluded that the legislature intended to confer standing under this provision to a person who.
over time, “developed and maintained a relationship with a child.” 1d. at 4; see also In re
ACEH, 373 S.W.3d 148, 150 (Tex. App.~San Antonio 2012, no pet); Jasek v. Tex. Dep’t of
Famiiy & Prolective Sues, 348 SW3d 523. 533 (Tex. AppmAustin 2011: no pet); C. E.M.-K.,
341 S.W.3d at 77. We again note that, instead of looking for “continuous and uninterrupted”
periods of possession} the childis principal residence controls. Section 102.003(b).
Requiring courts to consider the child’s “principal residence” excludes a person from
consideration who merely has occasional or temporary possession. Dancer} 81 S.W.3d at 359.
Generally, courts have found “actual care, control, and possession” when the person asserting
standing (I) lived in a home where the child consistently and frequently stayed overnight;
(2) financially supported the child; (3) participated in the child’s education; and (4) fed, clothed,
and provided health care to the child. Jasek. 348 S.W.3d at 534 (citing Smith v. Hawkins.
No. 01~09a00060~CV, 2010 WL 3718546, at *3 (Tex. AppmHouston [lst Dist] Sept. 23. 2010,
pet. denied) (mem. op); MKSmV. 301 S.W.3d at 463%5; and MFR, 25? S.W.3d at 809)). in
contrast, a pattern of possession that facilitates “momentary housing difficulties} inconvenient
travel schedules} the pursuit of higher education, or the inability to provide chiid care” is
evidence of a temporary arrangement between parties. M. RE, 257 S.W.3d at 809. The statute
does not require that the care, control, and possession he exclusive. Jasek. 348 S.W.3d at 534;
MP.B., 257 S.W.3d at 809. While care, control. and possession are usuaiiy assessed together,
some cases have turned on “actuai control.” See Jessie 348 S.W.3d at 534; In re KK.C., 292
S.W.3d 788, 793 (Tex. App.»—-Beaumont 2009, orig. proceeding); K6350, 266 SW3d at 590.
Standing is predicated on “actual control” of the child. rather than who has the legal right of
control. Jasek. 348 SW3d at 534; MPH, 257 S.W.3d at 809.
13
During periods of custody constituting the child’s “principal residence,” the caregiver has
“actual control” when the caregiver has the power or authority to guide or manage the child,
regardless of whether there is legai authority. See Jasek, 348 S.W.3d at 537. For example, in
Jase/r, the third-party caregivers had “actual control” over the children even though the Texas
Department of Family and Protective Services was the managing conservator with the legal
decision~making authority over the children. Id. The Jaseks provided for the children’s basic
necessities and gave them love and support; they complied with the treatment plan prescribed by
the childrenis doctor; they enrolled them in school; and they provided daily care, protection, and
reasonable discipline. Id. Similarly, in Reed, although, the grandparents did not have exclusive
control, the court concluded that they had at least percent of the control. In re Reed, No. {)6-
ll—OOOoo-CV, 2011 W’L 3332105, *2 (Tex. App.-Texarkana Aug. 4, 20i l, orig. proceeding)
(mem. op). The grandparents lived next door to the mother and children, and the children spent a
lot of time there; the grandparents took the children to and from school; and the grandparents
cared for, fed, and clothed the children. Id. In contrast, in KKC., a boyfriend who had been
cohabiting with the child’s mother did not have “actual control” because the mother made
decisions for the child, even though the boyfriend resided with and cared for the child. KKC.,
292 SW3d at 793.
A party who shares custody with another may nonetheless have actual care, control, and
possession. See MKS—V, 301 S.W.3d at 465. In MKS-V, as discussed above, the court
considered the parties’ actions and their informal custody agreement to assess Whether the party
had actual care, control, and possession. 1d. The nonbiological mother took the child to the
doctor, purchased medication, attended school activities, and established a college fund. Id. The
child also had her own room, toys, and playground equipment. 1d. Based on this evidence, the
nonbiological mother had “actual control” sufficient to confer standing. Id.
Scott had the legal right of control over BAG. as a joint managing conservator and
through her right to designate the child’s primary residence within Ector County. Although the
legal decision~making authority is not determinative, we note that Scott continually exercised her
authority when she determined that B.A.G.’s primary residence should be with Jimmy and
Theron, then B.A.G.’s aunt, then B.A.G.*s mother, and then B.A.G.’s father. But these relatives
continually turned over care of BAG. to the Shavers. When confronted with caring for BAG.
full~time, his mother called the Shavers crying because she did not know how to comfort the
14
hystericai child. Similarly. Gray did not participate in 8.331.633 case whiie he and the chiid both
lived with Jimmy and Theron, nor did he caii or Visit SAG. at any time when the chiid stayed
with the Shavers. While B.A.G.’s Visits to the Shaseirs’ home were less frequent during the
period that Gray’s girii’riend lived with him, Gray swiftly left BAG. with Keiley when his
girifi‘iencl moved out. None of this is evidence that B.A.G.’s mother or father actually guided.
managed, or controlleci the chilci.
The Shavers’ actions. however. Show that they exercised actuai care, control. and
possession over BAG. for the requisite six months. The Shavers took BAG. to and from
school. helned him with his homework. and helped him work on school projects. Although they
were not listed as his guardians. the school staff released BAG. to the Shavers on a regain:~
basis; they aiso released his grades to them. The Shavers communicated with his teacher and
attended parent conferences. Carrie signed B.A.G.’s enroiiment card when they selected his
elective classes, and both Shavers signed his homework assignment book on various occasions.
Additionaiiy', the Shavers took B.A.G. for immunizations and paid for him to play hockey.
They aiso purchased clothes and toys for B.A.G. without receiving any financial support from
B.A.G.’s relatives. The Shavers also supported BAG. while he struggied to cope with losing
Theron and then losing Jimmy, with whom B.A.G. had lived most of his life.
We hold that. as a matter of law, the Shavers had standing to file a suit affecting the
parent-child relationship under Section 102.003(a)(9). While our conclusion that the Shavers
have standing to bring suit does not mean that they will ultimately prevail. the Shavers have the
right to be heard. We reverse the order of the trial court in which it dismissed the Shavers”
petition? and we remand the cause to the trial court for further proceedings consistent with this
opinion.
JIM R. WRIGHT
January 31. 2613 CHIEF EUSTICE
Panel consists of: Wright. (3.3..
McCall. 3., and Willson. 3.
15
told that he could not be around his mother. B.A.G.’s teacher testified at the hearing that BAG.
had confided that his mother called him “some very ugly names” in the past. But from June until
August 2010, BAG. lived with Bartlett during the week and visited the Shavers on weekends.
The childis belongings remained with the Shavers, and B.A.G.’s furniture was never moved
from Kelley’s home. BAG. began sixth grade at a local school, but when Child Protective
Services “got involved” two weeks into the school year. Scott removed him from Bartlett’s care
and directed that BAG. live with, his father.
As Scott directed, BAG. moved in with Gray, and BAG. returned to his previous
school. After the first night, Gray phoned the Shavers and asked for their continued help with
B.A.G.’s care because Gray worked long hours. The Shavers picked up BAG. from school
each day and ensured that he finished his homework. BAG. did not move any of his clothing
and personal items to Gray’s home. The Shavers had BAG. for six nights each week because.
when they called, Gray usually said that he had to work late or meet a customer or had another
excuse; Carrie testified that she eventually quit calling. This pattern continued until Gray’s
girlfriend moved in around Halloween 2010.
From Halloween 2010 until March 2011. while Gray’s girlfriend lived in their townhome,
BAG. spent weekends at the Shavers’ home. Gray’s girlfriend picked up BAG. from school
and ensured that he did his homework. When Gray and his girlfriend later separated. though,
Gray left BAG. with Kelley. Carrie testified that she received “a phone call a week later,
asking if I’ll take [BAG] back in my home.” BAG. went back to live with the Shavers on
March 24, 2011. where he remained until the trial court made its first ruling.
The Shavers filed suit to be appointed managing conservator on May 17. 2011, and the
trial court held a hearing on June 7, 2011. At the hearing, Scott’s testimony was short because
she had iittle personal knowledge of the events in Ector County. After the trial court heard
extensive testimony from Carrie and testimony from Dennis and B.A.G.’s teacher and talked
with BAG. in chambers. the trial court deferred making a final ruling. The trial court entered
temporary orders that BAG. remain with the Shavers. and it also ordered that BAG. spend one
week with Scott in Hariingen. The court noted that it was familiar with the Shavers‘
circumstances because they had recently finalized an adoption in the same court, but it ordered
that a study he conducted on Scott’s home. The trial court also ordered Bartlett and Gray to
report immediateiy to provide a hair follicle sample to screen for controlled substances.
Although Scott never had actual possession of B.A.G., she received the child support checks for
B.A.G.is care; Scott agreed to refrain from cashing any child support checks until the trial court
ruled. The court explained that it would interview BAG. after his oneavveek visit with Scott in
Harlingen and that it would notify the parties of its final ruling after that interview.
Ultimately, the trial court found that the Shavers lacked standing under the Texas Family
Code. granted Scott’s motion to dismiss. and ordered the Shavers to deliver BAG. to Scott’s
possession on August 18. 2011. The Shavers filed another petition to modify the parent—child
relationship the following day and asked the trial court to appoint them either as B.A.G.’s sole
managing conservators or joint managing conservators with the right to designate residency.
The trial court held a second temporary hearing on November 10, 2011, to determine Whether the
Shavers had standing. The court heard limited testimony offered to clarify the dates that Gray’s
girlfriend lived in their townhome and Kelley’s periods of possession. After a brief recess to
consider the arguments and case law, the trial court again found that the Shavers lacked standing
and granted Scottis motion to dismiss. The Shavers appeal the trial court’s ruling on their
second petition.
“Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass ’22 ofBus. v.
Tex. Air Control 8d,, 852 S.W.2d 440. 443 (Tex. 1993). And determining whether a trial court
has “subject matter jurisdiction is a question of law.” Tex. Dep ’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Natural Res. Conservation Comm ’n v. 12113;:ng 74
S.W.3d 849, 855 (Tex. 2002)). Thus, we apply the same de novo standard of review that we
apply to subject matter jurisdiction. Tex. Dept ofTransp. v. City oszmset Valley. 146 S.W.3d
637, 646 (Tex. 2004); accord Tex. Ass ’n ofBus.. 852 SW2d at 44546. When we review a trial
courtis order regarding standing, our analysis begins with the plaintiff’s live pleadings, and we
construe the pleadings in favor of the plaintiff. Tex. 2135’}? of Bus. 852 S.W.2d at 446 (citing
Huston v. Fed. Deposit Ins. Corp, 663 S.W.2d £26, 129 (Tea. AppwEastland 1983, vvrit refd
n.r.e.)). We must then consider evidence that the parties offered and relied on “to resolve the
jurisdictional issues raised. as the trial court is required to do.” Miranda, 133 S.W.3d at 227
(citing Bland Indep. Sch. Dist. v. Blue. 34 S.W.3d 547 (Tex. 2000)). Standing to bring a claim is
a question of law that we review de novo. Mayhew v. Town oszmnyvoZe, 964 S.W.2d 922. 928
(Tex. 1998); N. Alamo Water Supply Corp. v. Tex. Dep’t ofHealfli. 839 S.W.2d 455, 457 (Tex.
AppmAustin 1992, writ denied).
The Shavers contend that the triai court erred when it determined standing based only on
the six months plus ninety days immediately preceding the date that they fried their petition
because B.A.G.’s principal residence had been in the Shavers" home for the last two years. In
response. Scott argues that the period of “actuai care, control, and possession” must be for a
consecutive six-month period that immediately precedes suit. Therefore. before we determine
whether the Shavers had six months of actual care, control, and possession, we must first
determine the relevant time period to use in an assessment of the time period for which a person
has care, control. and possession of a child under the Texas Family Code.
Although there are certain general principles that are involved in standing inquiries, when
standing is conferred by statute. “the statute itself serves as the proper framework for a standing
analysis.” Everett 1:. TK—Taito. L.L.C., 178 S.W.3d 844, 851 (Tex. Apprort Worth 2005. no
pet); see also Tex. Dep ’f ometecz‘ive (5’: Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.
2001) (applying the statutory framework to determine standing under Family Code); see, eg,
Hunt V. Bass, 664 S.W.2d 323, 324 (Tex. 1984) (explaining that the “general rule of standing is
applied in all cases absent a statutory exception to the contrary”). “The Texas Legislature has
provided a comprehensive statutory framework for standing in the context of suits involving the
parent-child relationship.” In re HG, 267 S.W.3d 120. 124 (Tex. App—«San Antonio 2008. pet.
denied); see also TEX. PAM. CODE ANN. §§ 102.003, .0045, .005 (West Supp. 2012). §§ 102.004,
.006 (West 2008). The party seeking relief has the burden to establish standing within that
framework. HG, 267 S.W.3d at 124.
To the extent that the issue turns on statutory construction, we review the question de
novo. City ofRockwaZZ V. Hughes. 246 SW3d 621. 625 (Tex. 2008). Our primary purpose is to
give effect to the intent of the legislature. and where the text is clear. it is dispositive of that
intent. Id. Our construction begins with the plain meaning of the statute’s words. City ofSarzsez‘
Vait‘ey, 146 SW3d at 642. “Words and phrases shall he read in context and construed according
to the rules of grammar and common usage.” TEX. GOVT CODE § 311.011(a) (West 2005).
But when there is “a technical or particular meaning, whether by legislative definition or
otherwise.” we construe those words or phrases accordingly. Id. §311.01 1(1)). We read the
statute as a Whole rather than consider isolated portions, and we must give effect to every part.
Acker v. Tex. Water Comm ’n, 790 SW2d 299. 301 (Tex. 1990); Ex parte Pruitt. 551 S.W.2d
706, 709 (Tex. l977). Moreover, we presume that the legislature acts with knowledge of court
decisions and the common law. Phillips v. Banner, 995 S.W.2d 655, 658 (Tex. 1999).
The Texas Supreme Court has not construed the current version of Section l02.003(a)(9),
but in 1998, it construed a former version, which had been recentiy recoditied, to require that the
six—month period of possession immediately precede the date of filing of the suit involving the
parent-child relationship. Jones v. Fowler, 969 S.W.2d 429, 433 (Tex. 1998). As recodified,
former Section 102.003(9) granted standing to “a person who has had actual care, custody, and
possession of the child for not less than six months preceding the filing of the petition.” Id. at
431. The construction turned on whether the legislature intended to amend the subsection
substantively because, among other changes, it had deleted the word “immediately” before
“preceding.” Id. at 433. The court seemed to agree with commentators that the purpose of the
“immediately preceding” requirement was to “require expeditious action,” which vested
discretion in the trial court to determine what was reasonable. Id. (quoting John J. Sampson,
Standing to Sue in a SAPCR, STATE BAR or Tex, ADVANCED FAMILY LAW COURSE B—l, 13—12
(1986)). in 1999, however, the legislature added a ninety~day Window within Which a person
who lost “actual care, control, and possession” must file suit, as well as subsection (b) to guide
courts when calculating time of possession. See Act of May 30, 1999, 76th Leg, R.S., ch. 1390,
§ 2, 1999 Tax. Laws 4696.
Now, Section 102.003(a)(9) confers standing to a person “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.” Section 102.003(a)(9). “In computing the time
necessary for standing under Subsections (20(9), (1i), and (l2), the court may not require that the
time be continuous and uninterrupted but shall consider the childis principal residence during the
relevant time preceding the date of commencement of the suit.” Id. § 10200303).
When it determined that the Shavers lacked standing. the trial court expressly stated in its
conclusions of law that it did not consider “any periods of possession by the SHAVERS prior to
December 19, 20E 1, which is six months plus ninety (90) days prior to the date of filing of the
(second) Petition to Modify.” Appellants argue that, after the 1999 amendment by which the
legislature added Section 102.003(h), parties may accumulate separate periods of possession to
reach a total of six months, so long as the last day of that six- month period was not more than
ninety days before the party filed suit.
Reading the statute as a whole, we first note that, of the fourteen subsections conferring
standing, subsection (b) applies only when “computing the time necessary for standing under
Subsections (a)(9), (11), and (12).” Id. § l02.003(’o). Subsection (a)( 12) grants standing to
foster parents; subsection (a)(1 1) grants standing to stepparents or other persons with whom the
child and the child’s parent have resided; and subsection (20(9) applies to third parties who care
for the chiid. Id. § l02.0{13(a)(9), (l 1), (12); see (2230 Dancer v. Dickerson, 81 S.W.3d 349, 357
(Tex. App.-~Ei Paso 2002, no pet.) (discussing standing under the three subsections). Because
the legislature instructed courtswnly in three defined circumstanceswto determine “the child’s
principal residence” rather than requiring that the period be “continuous and uninterrupted,” it
seems to have contemplated that foster parents, stepparents, and third—party caregivers are all
parties who may not have exclusive or continuous custody. Section 1020030)).
Scott argues that the periods of possession must be consecutive and must immediately
precede the filing. Scott cites In re K2130, 266 S.W.3d 586 (Tex. Apps—‘Fort Worth 2008, no
pet), for the proposition that the six months must be consecutive and Rupert V. MCCurdy, 141
S.W.3d 334, 340 (Tex. App.-Dallas 2004, no pet), to support her contention that the period
must immediately precede the tiling. In K6150, the court of appeals concluded that the
grandparents lacked standing because “the evidence presented at the temporary orders hearing
fails to show that the [grandparents] had actual care, control, and possession of the child for six
consecutive months.” 266 S.W.3d at 587.38 (emphasis added). The court reasoned, however,
that the grandparents had not established actual control during the period of possession because
the child’s mother continued to make decisions for the childwnot because the period of
possession was not consecutive. Id at 590. It further reasoned that there was no evidence that
the mother intended that the child stay with the grandparents for extended periods. 1d. at 591.
Simiiarly, although the court of appeals in Rupert stated that the proper inquiry was Whether the
nonparent had actuai care, control, and possession “for the six—month period immediately before
he filed his petition,” it determined that the nonparent lacked standing because he waited five
months after the mother and child moved out of his residence to seek possessory
conservatorship. l4} S.W.3d at 340, 341. Scott does not direct us to other post—1999
amendment cases that support her position.
The Shavers argue that their home had been B.A.G.’s principal residence since July 2009
and rely on Dancer, 81 S.W.3d 349; In re GEM. —K., 341 S.W.3d 68 (Tex. App—San Antonio
2011, pet. denied); and In re MK.S.J”’., 301 S.W.3d 460 (Tex. App.-Dallas 2009, pet. denied).
Scott urges us to disregard Dancer because there the court assessed standing under
Section 102.003(a)(l 1). We disagree, however, and find Dancer instructive when we construe
Section lG2.0G3{b), that portion of the statute that guides courts in determining standing under
Section 102.003(a)(9), (11), and (12). In Dancer, the El Paso Court of Appeals construed
“principal residence” in a case in which a child’s stepmother sought conservatorship after the
death of the child’s father. Dancer, 81 S.W.3d at 351. The court there distinguished the
legislature’s use of the term “principal residence” as opposed to its use of the term “primary
residence.” Id. at 361. If a child spends his time between more than one household, then a
parent or the managing conservator with the right to designate the primary residence, as is the
case here, usually has the unilateral right to designate the child’s “primary residence.” Id. at 359.
Because the legislature used “primary residence” eleven times in the Family Code, the court
determined that it would have used that phrase if it intended to predicate standing on the child’s
“primary residence.” Id. at 360. Instead, it selected the term “principal residence,” which it uses
only three times, all of which relate to jurisdiction and venue to determine where a child
“resides.” Id. at 359. The court applied the following definition of residence that is used under
the general civil statutes: 3 fixed, permanent abode that is intended to be occupied “consistently
over a substantial period of time.” Id. at 361 (citing Snyder v. Pitts, 241 S.W.2d 136, 140 (Tex.
1951)).
An informal custody agreement can evince intent for a child to occupy consistently the
home of a nonparent over a substantial period of time. See MKS-K, 301 S.W.3d at 465. In
M K.S.~V., two women decided to have a child after cohabiting for six years, and the biological
mother conceived through artificial insemination and use of a sperm donor. Id. at 462. When
the relationship ended, the women agreed to a visitation schedule that was similar to a standard
possession order. Id. at 465 (citing TEX. PAM. CODE: § 153.312 (West 2008)). During the
school year, the child Visited the nonhiological mother one night each week, alternate Sunday
afternoons, alternate weekends, and some holidays, and the child had longer visits during the
summer months. Id. at 465. The child had her own room, television, and toys, and the
nonbiological mother picked up the child from school when sick, attended school activities, and
established a college fund. Id. In addition, the school was aware that the nonbiological mother
picked up the child during visitation periods, and witnesses observed the biological mother
treating the other as a parent of the child. Id. The court concluded from the possession
agreement and parties‘ actions that from August :3. 2005, to April 25, 2007, the nonbiological
mother had six months of “actual care, control, and possession.” Id. at 462. Although the case
turned on whether the arrangement was intended to be temporary. it instructs us that a person
who shares custody with another may nonetheless have standing if the arrangement shows an
intent that the child occupy the home consistently over a substantial period of time.
Similarly, in 8., a woman who kept her grandchild once a week and on weekends,
holidays, and vacations over a seventeen—month period had standing because she had provided
the chiid with a permanent residence that the child occupied consistently over a substantial
period of time. In re M. 19.8.. 257 SW3d 804. 809 (Tex. App—«Dallas 2008, no pet). The court
distinguished the grandmother’s care from possession that facilitates “inability to provide child
care” because such care is a temporary arrangement. Id.
Additionally. a child’s “principal residence” may change over several periods of time.
and a person asserting standing may aggregate separate periods of possession. See C. EM —K.,
341 S.W.3d at 78. In GEM. -K., when the child was five years old, she lived with her mother
and stepfather, two stepbrothers, and a new half sister. Id. at 72. Unfortunately, C.E.M.~K.is
mother had a serious alcohol addiction, and the couple later divorced. Id. at 73. When the Texas
Department of Family and Protective Services required the mother to seek alcohol treatment. the
former stepfather cared for all four children from December 9, 2008, until the first week of April
2009. Id. at 73: 77, 79. A month after she completed treatment and regained possession of the
children, the mother overdosed and died. Id. at 74. In September 2009} C.E.M.-K.’s biological
father filed a writ of habeas corpus to obtain visitation rights; and two months later, the former
stepfather filed an original petition seeking conservatorship. Id, at 74—75. The father challenged
the stepfather’s standing on appeal, but the court concluded that the stepfather had standing
because he had a combined eight or ten months of actual “care, control. and possession.” Id. at
78. The court reached this conclusion because it combined the four months} from December
2008 to April 2009. while the mother was in treatment, with another four or six months after the
motheris death on May S, 2089. depending on Whether one uses the date of the father’s
September filing or the former stepfather’s filing in November. Id.
We conclude that the trial court erred when it construed “the relevant time” to be used to
calculate standing as the consecutive six months plus ninety days before the date that the suit was
filed. instead, the relevant period of time includes the periods of possession that the petitioner’s
home was the child’s “principal residence,” even if not consecutive. See Section 10.2.0030». in
a three—part analysis, courts should first determine the chiidis principal residence, so it must
examine the parties’ actions and the possession arrangement to determine Whether the child was
intended to consistently reside in the petitioner’s home “over a substantial period of time.”
MKS—l5, 301 S.W.3d at 465; MP3,, 257 S.W.3d at 809. Next, the party asserting standing
must have had “actual care, control, and possession” for a total of six months during the periods
in which that party’s home was the child’s principal residence. See Section 102.003(a){9). In
some circumstances, a standard possession order alone may establish both the “principal
residence” and “actual care, control, and possession,” but because the focus is on “actual” care,
control, and possession rather than legal authority, that is not always the case. Finally, the
petitioner must file suit while having “actual care, control, and possession” or Within ninety days
of losing such possession of the child. [(1.
The Shavers contend that their home has been B.A.G.’s primary residence since July
2009 because, “[w]hen the trial periods with the mother and the father failed, and the aunt
determined that she could not care for B.A.G., the child always returned to the residence of the
SHAVERS.” The patties conceded at the hearing that B.A.G. never resided with Scott, who had
been granted the right to determine the child’s primary residence. Thus, we review the various
periods of shared possession to determine whether the Shavers: home was B.A.G.’s principal
residence.
The five'month period after the death of B.A.G.’s great-grandfather, from December
2009 until May 2010, suggest a shared custody or coaparenting arrangement between the Shavers
and Jimmy. BAG. stayed with the Shavers While Theron was dying, and BAG. returned to the
Shavers? home after Theron’s death, where he stayed fifty percent of the time. Jimmy had just
lost her spouse and struggled with “down days,” and the Shavers emotionally supported hoth
jimmy and BAG. after their loss. BAG. left his clothes and other possessions at the Shavers’
home when he stayed with Jimmy. iimmy ieft the back door of her home unlocked so that the
Shavers would always have access. The Shavers took BAG. to and from school, and they
helped him with his science fair project. Although the school did not officially recognize the
Shavers as having authority over B.A.G., it nonetheless released BAG. to the Shavers and
provided Carrie with his final report card.
10