in Re Debra Shifflet and George Shifflet ( 2015 )

Opinion issued March 3, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00929-CV
———————————
IN RE DEBRA SHIFFLET AND GEORGE SHIFFLET, Relators
Original Proceeding on Petition for Writ of Mandamus
OPINION
This original mandamus proceeding arises from an underlying motion to
modify a suit affecting the parent-child relationship (“SAPCR”) filed by the real
party in interest, Dawn Renee Cantrell (“Dawn”).1 Dawn had previously obtained
a temporary order in June 2014 enjoining possession or access by the father, and
1
The underlying case is In the Interest of B.R.M. and T.S.M., Children, Cause
No. 2004-37975, in the 310th District Court of Harris County, Texas, the
Honorable Lisa Millard presiding, who is named as the respondent.
then filed a motion to modify the SAPCR as to her children, B.R.M. and T.S.M.
The relators, Debra and George Shifflet (collectively, the “Shifflets”), the paternal
step-grandfather of the children in question and his wife, filed a petition in
intervention in the modification action. After a non-evidentiary hearing on
standing, the trial court granted Dawn’s motion to dismiss the intervention for lack
of standing.
In this petition for a writ of mandamus, the Shifflets seek to vacate the trial
court’s October 22, 2014 order granting Dawn’s motion to dismiss their
intervention for lack of standing. We conditionally grant the petition.
BACKGROUND
The underlying case is a modification of the SAPCR involving two teenage
children, a 16 year-old girl, B.R.M., and a 13 year-old boy, T.S.M. The parents,
Dawn and the father, Willie E. Moore (“Willie”), were divorced in 2004 and
agreed by order to modify the parent-child relationship on December 29, 2009
(“2009 Order”). In the 2009 Order, the parents were named joint managing
conservators and Willie was granted the exclusive right to establish the primary
residence of the children. The 2009 Order contained a single provision relating to
the Shifflets, Willie’s step-father and his current wife, providing them reasonable
phone access to the children, including without limitation phone access three
2
evenings a week, and allowing this provision to be enforced by either parent or by
the Shifflets, singularly and together, in their own name.
On May 1, 2014, Willie filed a petition for a writ of habeas corpus with
respect to the children alleging that Dawn had illegally kept their children from
him. On June 2, 2014, the trial court signed an order requiring Dawn to be at the
courthouse on June 10, 2014, with the children.
On June 9, 2014, Dawn filed an answer to the habeas petition asserting,
among other things, that she “has been in possession of the children to protect their
safety,” because Willie had been convicted of domestic violence and he had
“relinquished control of [B.R.M.] for more than six months prior to the filing of the
Writ of Habeas Corpus.” In her affidavit attached to her habeas answer, she also
alleged her possession of T.S.M. since March of 2014.
On June 10, 2014, Willie and his counsel failed to appear at the hearing.
The Shifflets were not noticed and, consequently, did not appear at this hearing
either.
The trial court signed an order on June 18, 2014, denying Willie’s habeas
petition. In this June 18th Order, the trial court also made factual findings that are
relevant to this mandamus petition, including that B.R.M. had been in Dawn’s
possession for over six months before the filing of the habeas petition, that Willie
3
had not had any possession of B.R.M. since July 2013, and that T.S.M. had been in
Dawn’s possession since March 2014 and Willie had not had any possession of
T.S.M. since March 2014. The trial court also entered Temporary Orders in the
same June 18, 2014 order denying Willie’s habeas petition (collectively, the “June
18th Temporary Order”). The order appointed Dawn as temporary sole managing
conservator and Willie as temporary possessory conservator, but enjoined Willie
from having any access or possession of the children until further court order.
Later on the same day, Dawn filed a motion to modify the parent-child
relationship seeking to be named the permanent sole managing and possessory
conservator over her two children. Dawn’s motion also sought temporary
restraining orders against Willie and his current wife, Kelly Moore (“Kelly”), to
prevent them from accessing or possessing the children. As support, Dawn’s
motion attached Willie’s underlying criminal proceeding papers showing that he
had been twice convicted of assaulting Kelly for which he was placed on three
years community supervision in May 2012. Dawn also attached photos showing
bruises on her children that she claimed were caused by Willie.
On September 21, 2014, the Shifflets filed a Petition in Intervention
(“Intervention”), seeking to intervene in Dawn’s modification action and to be
named sole managing conservators of the grandson, T.S.M. The Shifflets’
Intervention claimed standing because they were parties affected by the 2009
4
Order and because they have had actual care, control, and possession of T.S.M. for
at least six months. They further contended that Willie had voluntarily
relinquished the actual care, control, and possession of T.S.M. for at least six
months and that they had had actual care, control, and possession of him for more
than that period. In their affidavit in support of their Intervention, the Shifflets
stated that T.S.M. had lived with them from May 2004 to August 2008 and again
from March 2014 until September 15, 2014, both times with the permission of both
parents, and that Dawn had also lived with them from March 2014 until June 5,
2014. The Shifflets’ affidavit admitted that they were step-grandparents, but
claimed that they needed to be named temporary conservators because of Willie’s
convictions, because Dawn and her current husband were currently living in a hotel
with the two children in living conditions that were “very unpleasant and unsafe,”
and because neither child was enrolled in school. The Shifflets requested that the
Court render a temporary possession order designed to protect the safety and well-
being of children because of family violence committed against them and others by
Willie.
That same day, on September 21, 2014, the Shifflets also sought a temporary
restraining order (“T.R.O.”) restraining both Willie and Dawn from disturbing the
peace of the children or another party, withdrawing the children from enrollment in
the school or day-care facility in which they were enrolled, hiding the children,
5
making disparaging remarks about the other parties within the hearing of the
children, and changing the child’s usual place of abode, and requested that both
Willie and Dawn be ordered to pay child support while the case was pending. On
October 2, 2014, the trial court signed both the T.R.O. and Notice of Hearing for
Temporary Orders, setting them for an October 22, 2014 hearing to determine
whether the T.R.O. should be made a temporary injunction pending final hearing.
On October 8, 2014, Dawn filed her answer to the Shifflets’ petition in
intervention, arguing that the Shifflets lacked standing to file the Intervention,
under Section 102.004 of the Texas Family Code,2 because they were not
biologically related to their step-grandson, T.S.M. Dawn further argued that the
Shifflets did not have actual care, control, or possession of T.S.M. for at least six
months ending not more than ninety days before filing their petition in
intervention, under Section 102.003(a)(9).3
2
Section 102.004 provides, in relevant part, that “[i]n 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 “the order requested is necessary because
the child’s present circumstances would significantly impair the child’s
physical health or emotional development” or both parents or the managing
conservator or custodian filed the petition or consented to the suit. TEX.
FAM. CODE ANN. § 102.004(a) (West Supp. 2014) (emphasis added).
3
Section 102.003(a)(9) provides, in relevant part, that “[a]n original suit may
be filed at any time by: . . . (9) a person, other than a foster parent, who has
6
On October 16, 2014, Dawn filed her motion to dismiss the Shifflets’
petition in intervention for lack of standing because the June 18th Temporary
Order was already in place naming Dawn as the sole managing conservator of both
children. Dawn argued that the trial court’s June 18th Temporary Order had made
factual findings that the children had been in Dawn’s possession since at least
March 2014, negating the Shifflets’ standing under Section 102.003(a)(9), as they
could not have had “exclusive” possession for the statutorily-required six-month
period. Dawn further argued that the Shifflets’ affidavit was inadequate as a
matter of law because it referred mainly to Willie, who had already been
temporarily enjoined from possession by the June 18th Temporary Order, and
inaccurately stated that Dawn refused to enroll T.S.M. in school because it was the
Shifflets who had wrongfully withheld T.S.M. from Dawn and who had failed to
enroll him. Dawn also requested that her motion to dismiss be heard before the
T.R.O./temporary orders hearing, and filed a notice of hearing scheduling her
motion for the same October 22, 2014 date.
On October 20, 2014, the Shifflets filed an amended petition in intervention
seeking sole managing conservatorship of both children, B.R.M. and T.S.M.
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.” Id. at § 102.003(a)(9).
7
On October 22, 2014, the trial court held a non-evidentiary hearing on
standing and heard from both counsel on Dawn’s motion to dismiss. Dawn
repeated her motion to dismiss arguments and noted that while most of the
Shifflets’ affidavit discussed Willie, the trial court had already made findings in its
June 18th Temporary Order excluding Willie from access and that Dawn had had
possession of the children since March of 2014. At Dawn’s request, the trial court
agreed to take judicial notice of its June 18th Temporary Order. Dawn contended
that the June 18th Temporary Order’s factual finding that she had actual possession
of both of her children since March 2014 made the Shifflets’ affidavit “insufficient
as a matter of law,” under Section 102.003(a)(9), requiring dismissal. Dawn later
asserted that the Intervention also should be dismissed because the parental
presumption under Chapter 153 of the Family Code should be applied.4
The Shifflets countered, during the hearing, that Section 102.003(a)(9) does
not require that a person seeking conservatorship of a child under that general
standing provision be a blood relative of the child. It requires only possession of
the children for a six-month period, which need not be continuous. Their counsel
also stated that the Shifflets were present in court and ready to testify regarding
4
Chapter 153 of the Family Code addresses the merits of “Conservatorship,
Possession, and Access” to a child. Section 153.131 provides a rebuttable
presumption that a fit parent be appointed managing conservator. See id. at
§ 153.131(b).
8
their actual care, custody, and control of the children. However, the trial court did
not permit them to testify.
The Shifflets also asserted that they had standing, under Section 156.002(a)
of the Family Code,5 especially as to the granddaughter, B.S.M., because the
court’s 2009 Order Dawn was seeking to modify allowed them phone visitation
rights to both grandchildren and their rights were therefore affected by the June
18th Temporary Order. They further contended that, therefore, they had standing
under Chapter 153 of the Code to assert rights to conservatorship and possession of
both children. In particular, they pointed to Section 153.009, which provides that
the trial court may interview a child 12 years of age or older to determine with
whom the child wishes to live.6 The Shifflets requested that the trial court take
judicial notice of that 2009 Order. Finally, they argued that the parental
presumption did not apply in modification actions, such as this case.
After hearing only the arguments of counsel on standing, and without
receiving evidence other than to take judicial notice of the contents of the June
18th Temporary Order, the trial court orally granted Dawn’s motion to dismiss the
Intervention and signed an order later that day (“October 22nd Order”). Despite
5
Section 156.002(a) provides, “A party affected by an order may file a suit
for modification in the court with continuing, exclusive jurisdiction.” Id. at
§ 156.002(a).
6
See id. at § 153.009(a).
9
the absence of any witness testimony on standing, the October 22nd Order stated
that, “[a]fter the hearing of testimony and arguments of counsel, the Court orders
that the Intervention filed in this matter is hereby DISMISSED for lack of
standing.”
Immediately after ruling that the Shifflets did not have standing to intervene,
the trial court proceeded to hold a partial ex parte evidentiary hearing on Dawn’s
counsel’s separately-filed writ of habeas corpus for children and temporary orders.
Dawn testified that, although her children had recently returned to stay with the
Shifflets because she and her new husband had been staying in a hotel since June
2014, she had since moved into a new house, but that the Shifflets had refused to
turn over possession of her children the previous weekend. The trial court did not
hear from any other witnesses and orally granted Dawn’s habeas writ.
On November 19, 2014, the Shifflets filed this mandamus petition
contending that the trial court’s October 22nd Order was an abuse of discretion
because: (1) their Intervention affidavit stated unrebutted facts showing their
possession of T.S.M. for at least the six-month period before filing the
Intervention, which they argued was sufficient to establish standing under Section
102.003(a)(9), and they should have been allowed to testify to rebut Dawn’s
motion; and (2) they also had standing to file the Intervention because the 2009
Order gave them significant phone access rights to both grandchildren so that they
10
were parties affected by that order, under section 156.002(a). The Shifflets
primarily claimed standing under the general standing provision of Section
102.003(a)(9), and alternatively under Section 156.002. The Shifflets further
claimed that they lack an adequate remedy by appeal because temporary orders in
SAPCRs are not appealable. The Shifflets sought either an order vacating the
October 22nd Order dismissing their Intervention as to both children or at least as
to T.S.M.
Dawn responded that the Shifflets had failed to show standing to intervene
under Section 102.003(a)(9) because the trial court’s June 18th Temporary Order
already had found that both children were in Dawn’s continuous possession after at
least March 2014. Dawn further asserted that the Shifflets also lacked standing to
intervene, under Section 156.002, because they were not listed as actual parties in
the 2009 Order, were not burdened with any duties by that phone access provision,
and lacked “sufficient interest” in the children by virtue of that 2009 Order.
Finally, Dawn argued that the Shifflets failed to show that they lacked an adequate
remedy by appeal because the 2009 Order did not grant them a right as parties,
other than to enforce the phone access provision, and thus the October 22nd Order
did not deprive them of a substantial right.
11
STANDARD OF REVIEW
Mandamus is an extraordinary remedy, available only when the relator can
show both that: (1) the trial court clearly abused its discretion; and (2) there is no
adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317
(Tex. 2005) (orig. proceeding) (per curiam). A clear abuse of discretion occurs
when a trial court “reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding) (internal quotation marks and citation omitted). A
trial court has no discretion in determining what the law is or in applying the law to
the particular facts. Id. at 840. A clear failure by the trial court to analyze or apply
the law correctly constitutes an abuse of discretion. Id.
In determining whether an appeal is an adequate remedy, we consider
whether the benefits outweigh the detriments of mandamus review. In re BP
Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). A party
establishes that no adequate appellate remedy exists by showing it is in real danger
of losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d
304, 306 (Tex. 1994) (orig. proceeding).
12
STANDING
A. General Standing Principles
A party may intervene into a lawsuit, subject to being stricken out by the
trial court for sufficient cause on motion of a party. TEX. R. CIV. P. 60. A person
can intervene if he could have brought the same action on his own. Guaranty Fed.
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
“A party seeking conservatorship of a child must have standing to seek such
relief.” In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.]
2011) (orig. proceeding) (citations omitted). “Standing . . . is implicit in the
concept of subject-matter jurisdiction, and is a threshold issue in a child custody
proceeding.” Mauldin v. Clements, 428 S.W.3d 247, 262 (Tex. App.—Houston
[1st Dist.] 2014, no pet.) (citations omitted). “Whether a party has standing to
pursue a cause of action is a question of law that we review de novo.” Id. (citation
omitted). “In our de novo review of standing, we must take as true all evidence
favorable to the challenged party and indulge every reasonable inference and
resolve any doubts in the challenged party’s favor.” In re McDaniel, 408 S.W.3d
at 397 (citations omitted).
“When standing has been conferred by statute, the statute itself should serve
as the proper framework for a standing analysis.” In re K.D.H., 426 S.W.3d 879,
883 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citation omitted). “In the
13
context of a [SAPCR], standing is governed by the Family Code, and [t]he party
seeking relief must allege and establish standing within the parameters of the
language used in the statute.” In re McDaniel, 408 S.W.3d at 397 (internal
quotation marks and citations omitted). The reviewing court must give effect to
the Legislature’s intent from the language used in the statute and not look to
extraneous matters for an intent the statute does not state. In re K.D.H., 426
S.W.3d at 883. If the meaning of the statutory language is unambiguous, the
interpretation supported by the plain meaning must be adopted. Id. at 884.
Ordinarily, standing is based on the existence of certain facts. In re K.D.H.,
426 S.W.3d at 884 (citation omitted). A court deciding an issue of standing is not
required to look solely to the pleadings but may consider evidence and must do so
when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). A challenge to standing cannot be
used to require the intervenor to prove his entire case but should be limited to facts
that might be characterized as primarily jurisdictional. See id. at 554.
B. The Shifflets’ Standing Under Section 102.003(a)(9) of the Family Code
The Shifflets’ petition in intervention and affidavit alleged the facts to claim
general standing under Section 102.003(a)(9) as the primary basis for their request
14
to intervene in the modification action, particularly as to T.S.M..7 While the
Shifflets filed a petition in intervention rather than an original suit under Section
102.003, a person who satisfies the standing requirements to file an original suit
may also intervene. See In re S.B., No. 02-11-00081-CV, 2011 WL 856963, at *2-
3 (Tex. App.—Fort Worth Mar. 11, 2011, orig. proceeding) (mem. op.)
(grandparents who satisfied section 102.004(a)’s requirements for filing original
suit also had right to intervene); cf. In re Union Carbide Corp., 273 S.W.3d 152,
155 (Tex. 2008) (per curiam) (“[A] party may intervene if the intervenor could
have brought the [pending] action, or any part thereof, in his own name.”) (internal
quotation marks and citation omitted). Thus, if the Shifflets satisfy the standing
requirements to file an original suit, they also satisfy standing to intervene.
“The burden of proof is on the party asserting standing, and the petitioner
must show that the facts establishing standing existed at the time the petition was
filed in the trial court.” Mauldin, 428 S.W.3d at 263 (citation omitted). Because
7
Contrary to Dawn’s arguments, the Shifflets did not seek grandparent
standing under Section 102.004 or possession or access under Section
153.432(a), the latter of which would bar their standing because they are
step-grandparents, not biological or adoptive grandparents. See In re
Derzapf, 219 S.W.3d 327, 332-33 (Tex. 2007) (orig. proceeding). The
Texas Supreme Court stated that, “[r]egardless of whether [Relator] satisfied
section 102.003(a)(9)’s general standing requirements for filing a SAPCR—
an issue we do not reach—the trial court awarded access based on the
standards set forth in section 153.433, the grandparent access statute.” Id. at
332. Here, the Derzapf decision does not apply because the parties did not
seek and the trial court did not make a Section 153.433 possession or access
determination.
15
the Shifflets filed their original Intervention on September 21, 2014, their standing
to intervene is measured at the time their intervention was filed. “If the petitioner
fails to meet this burden, the trial court must dismiss the suit.” In re McDaniel,
408 S.W.3d at 397 (citations omitted).
Under Section 102.003, the general standing to file suit provision, Section
102.003(a)(9) grants standing to “a person, other than a foster parent, who has had
actual care, control, and possession of the child for at least six months ending not
more than 90 days preceding the date of the filing of the petition.” TEX. FAM.
CODE ANN. § 102.003(a)(9) (West Supp. 2014). “An individual filing such a suit
and claiming standing under this statute need only file her petition and allege that
she is a person, other than a foster parent, who has had actual care, control, and
possession of the child for at least six months ending not more than 90 days
preceding the date of the filing of the petition.” In re K.D.H., 426 S.W.3d at 884
(citing Section 102.003(a)(9) and Tex. Dep’t of Parks and Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004)). “In such a case, pleading a proper basis for
standing is sufficient to show standing, unless a party challenges standing and
submits evidence showing the non-existence of a fact necessary for standing.” Id.
(citing Miranda, 133 S.W.3d at 227). “In that event, the petitioner must submit
evidence raising a fact issue on the challenged elements to avoid a dismissal for
lack of standing.” Id. (citing Miranda, 133 S.W.3d at 227-28). If the facts are
16
disputed, the trial court cannot dismiss for lack of standing. Miranda, 133 S.W.3d
at 227-28.
“A determination of standing under section 102.003(a)(9) is necessarily fact
specific and determined on a case-by-case basis.” In re Fountain, No. 01-11-
00198-CV, 2011 WL 1755550, at *3 (Tex. App.—Houston [1st Dist.] May 2,
2011, orig. proceeding) (citation omitted). “In computing the time necessary for
statutory standing, 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. (internal quotation
marks omitted) (citing TEX. FAM. CODE ANN. § 102.003(b)). “To the contrary, this
Court and others have previously held that [n]othing in section 102.003(a)(9)
requires that care, custody, control and possession be exclusive.” Id. at *4 (internal
quotation marks and citations omitted) (emphasis added).
With these principles in mind, we determine whether the trial court abused
its discretion when it granted the motion to dismiss, based solely as a matter of law
on the pleadings and arguments of counsel, and dismissed the Shifflets’
Intervention for lack of standing to intervene in or to file an original suit requesting
sole managing conservatorship under Sections 102.003(a)(9) and 156.002(a).
17
ANALYSIS
1. The Trial Court Abused its Discretion by Dismissing the
Intervention as a Matter of Law Determining Standing on
Pleadings Alone or by Judicial Notice of the June 18th Temporary
Order
The Shifflets’ Amended Intervention and affidavit pleaded a proper basis for
standing under Section 102.003(a)(9) by alleging that T.S.M. had been living with
them from the six-month period from March to September 15, 2014, ending not
more than 90 days prior to filing the petition. As noted above, “pleading a proper
basis for standing is sufficient to show standing, unless a party challenges standing
and submits evidence showing the non-existence of a fact necessary for standing.”
In re K.D.H., 426 S.W.3d at 884. Therefore, the Shifflets established their
standing to intervene under the general standing statute, subject to Dawn’s
producing controverting evidence showing that they had not had care, custody, and
control of the child, T.S.M., during the relevant time period.
To controvert the Shifflets’ pleadings, Dawn’s counsel requested, during the
standing hearing, that the trial court should take judicial notice of its June 18th
Temporary Order and the trial court responded affirmatively and granted the
request. Dawn contended that the factual findings made in that June 18th
Temporary Order, specifically the finding that Dawn had possession of both
children since March of 2014, made the Shifflets’ affidavit insufficient as a matter
of law by rebutting their contention that they had actual possession of at least the
18
grandson, T.S.M., for the requisite six-month period. The trial court agreed. We
conclude, however, that this was error.
To be the proper subject of judicial notice, an adjudicative fact must be
“either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” TEX. R. EVID. 201(b); see also Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (citations omitted).
Judicial notice is mandatory if requested by a party and if the court is supplied with
the necessary information. See TEX. R. EVID. 201(d); MCI Sales & Serv., Inc. v.
Hinton, 329 S.W.3d 475, 484 n.7 (Tex. 2010).
However, “[i]t is well recognized that a trial court may take judicial notice
of its own records in a cause involving the same subject matter between the same,
or practically the same, parties.” Gardner v. Martin, 162 Tex. 156, 158, 345
S.W.2d 274, 276 (1961) (emphasis added). “A trial court may take judicial notice
of its own records in matters that are generally known, easily proven, and not
reasonably disputed.” In re R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—San
Antonio 2014, no pet.) (internal quotation marks and citation omitted). “Therefore,
a court may take judicial notice that a pleading has been filed in the case, that it has
signed an order, or of the law of another jurisdiction,” but “[a] court may not take
judicial notice of the truth of allegations in its records.” Id. (emphasis in original)
19
(citation omitted); see also Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (noting that “the trial court may not take
judicial notice of the truth of factual statements and allegations contained in the
pleadings, affidavits, or other documents in the file.”) (emphasis in original)
(citations omitted).
Here, as noted above, Dawn had submitted an answer and affidavit
controverting Willie’s habeas corpus petition and, consequently, the Shifflets were
neither parties to, nor present at, the June 10, 2014 habeas hearing. Thus, the trial
court abused its discretion because its June 18th Temporary Order was not the
proper subject of judicial notice for the October 22, 2014 non-evidentiary hearing
on standing since the Shifflets were not the same parties at the prior hearing. See
Gardner, 162 Tex. at 158.
Furthermore, to the extent that the trial court granted Dawn’s judicial notice
request, under Rule 201(d), of the truth of the adjudicative factual findings in its
June 18th Temporary Order, that was also an abuse of discretion. Such factual
findings regarding Dawn’s possession of her children were neither “(1) generally
known within the territorial jurisdiction of the trial court [n]or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” TEX. R. EVID. 201(b). “When evidence is the subject
of improper judicial notice, it amounts to no evidence.” Guyton, 332 S.W.3d at
20
693 (citing Augillard v. Madura, 257 S.W.3d 494, 503 n.14 (Tex. App.—Austin
2008, no pet.) (finding evidence legally insufficient to support judgment where
trial court took judicial notice of testimony from a hearing held thirteen months
earlier in the same case, but the evidence was not offered in the second hearing)).
Therefore, if the trial court took judicial notice of the truth of the June 18th
Temporary Order’s findings on Dawn’s possession of her children and used it as
evidence to dismiss the Shifflets’ Intervention and affidavit for lack of standing as
a matter of law, that was an abuse of discretion. See id.
Moreover, as noted above, “[n]othing in section 102.003(a)(9) requires that
care, custody, control and possession be exclusive.” In re Fountain, 2011 WL
1755550, at *4 (internal quotation marks and citations omitted) (emphasis added).
Thus, to the extent that the trial court found the Shifflets’ affidavit insufficient as a
matter of law because it stated that Dawn was also living with them from March to
June 5, 2014, with T.S.M., that was an abuse of discretion since Section
102.003(a)(9) does not require exclusive care, custody, control and possession.
We conclude that Dawn has not shown that the Shifflets lacked standing to
intervene under section 102.003(a)(9) of the Family Code, and that the trial court
abused its discretion in granting her motion to dismiss.
21
2. Chapters 156 and 153 of the Family Code and Implied
Application of the Parental Presumption
Dawn also argued that the Shifflets lacked standing to intervene under
Chapters 153 and 156 of the Family Code because they were not parties to the
2009 Order and did not have a sufficient interest in the children to proceed under
those provisions. In addition, Dawn also argued during the hearing that the
parental presumption, under Section 153.131, should apply to override the
Shifflets’ interests as grandparents. The Shifflets countered that they do have
standing under these provisions because the 2009 Order granted them “important
rights relative to the children,” as to both T.S.M. and B.R.M., and allowed them to
enforce the 2009 Order in their own name, which effectively granted them the
status of parties. They also argued that the parental presumption does not apply in
a modification action.
Both parties agree that Section 156.002(a) confers standing if the persons
relying on the section that show that they were parties affected by the order a party
is seeking to clarify or modify. See TEX. FAM. CODE ANN. § 156.002(a); see also
In re S.A.M., 321 S.W.3d 785, 790 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). Both also agree that In re S.A.M., issued by our sister court, the Fourteenth
Court of Appeals, is the controlling authority on point.
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In In re S.A.M., the mother of the children died and the Texas Department of
Family and Protective Services filed a SAPCR. Id. at 787. A non-relative, Susan
Doyle, was granted leave to intervene because of her substantial past contact with
the children. Id. Subsequently, an agreed final order was signed by the trial court.
Id. Although Doyle was not named a conservator, she was granted daily telephone
access with the children. Id. A year and half later, Doyle filed a modification suit
seeking to remove the children’s uncle as the sole managing conservator of the
children and to appoint her in his place. Id. The uncle argued that Doyle lacked
standing to intervene under section 156.002 and the trial court agreed. Id. at 788.
The appellate court reversed.
The court of appeals held that in order to have standing under section
156.002(a), Doyle must (1) be a party to the order as to which modification was
sought and (2) have a “sufficient interest” in a child who was the subject of the
order such that the order affected her. See id. at 789-90; see also Pratt v. Tex.
Dep’t of Human Resources, 614 S.W.2d 490, 495 (Tex. Civ. App.—Amarillo
1981, writ ref’d n.r.e.). Because Doyle had intervened in the original proceeding,
made appearances at hearings, was named a party to the 2006 order, and signed the
2006 order as a party, the appellate court found that she was a party pursuant to
section 156.002(a). In re S.A.M., 321 S.W.3d at 790. The court rejected the
argument that Doyle could not be affected by the 2006 order because she did not
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receive any conservatorship rights under it. In re S.A.M., 321 S.W.3d at 791.
Because Doyle’s telephone access was “important to the children’s well-being,”
she was found to have “sufficient interests” in the children to maintain standing.
Id. at 792.
Here, the 2009 Order was likewise an agreed order. The Shifflets’ son
Willie was named managing conservator with the right to designate the primary
residence of the children, and Dawn was named joint managing conservator. The
Shifflets were given rights to telephone visitation with the children at least three
days a week and were expressly permitted to enforce the order in their own name,
either singularly or together. By granting the T.R.O., which the trial court signed
on October 2, 2014, the Shifflets were allowed to seek to enforce the 2009 Order
because the T.R.O. enjoined all parties from, among other things, changing both
childrens’ usual place of residence pending the final hearing.
The record of the case shows that Willie was prohibited from seeing the
children due to his domestic violence convictions. The Shifflets effectively seek
by their petition for intervention in this modification suit to step into his shoes.
The record also shows both parents agreed for extended periods of time that the
children should live with the Shifflets, and they did so. It also shows that Dawn
herself lived with the Shifflets for a period of time shortly before the filing of this
suit. Under these circumstances, we conclude that the Shifflets have shown that
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they have substantial rights to the children that are affected by this suit and that
their access to the children was important to the children’s well-being. We
therefore hold that they have a sufficient interest in both of the children to have
standing to intervene in this suit by Dawn to modify the 2009 Order, under Section
156.002(a), and to be named sole managing conservator of the children.
In addition, we hold that Dawn’s argument that the Chapter 153 parental
presumption applies to this suit is without merit. The Texas Supreme Court has
“concluded that Chapter 153’s parental presumption does not apply in a Chapter
156 modification proceeding.” Mauldin, 428 S.W.3d at 267 (citing In re V.L.K.,
24 S.W.3d 338, 344 (Tex. 2000)). Thus, to the extent the trial court impliedly
found that the parental presumption applied here to dismiss the Shifflets’
Intervention as a matter of law, this was an error of law and, therefore, an abuse of
discretion.
Accordingly, we conclude that the trial court abused its discretion by
dismissing the Shifflets’ Intervention under Chapters 156 and 153 of the Family
Code.
Moreover, to the extent the trial court dismissed this suit as a matter of law
under section 102.004 without any controverting evidence from Dawn on the
Shifflets’ standing to pursue their claims, it likewise abused its discretion. See
Miranda, 133 S.W.3d at 227; In re K.D.H., 426 S.W.3d at 884. Furthermore, to
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the extent that the trial court took judicial notice of the truth of the June 18, 2014
Temporary Order’s factual findings as evidence to controvert the Shifflets’
affidavit, that was an abuse of discretion as this ex parte order was not evidence.
See Guyton, 332 S.W.3d at 693.
3. No Adequate Remedy by Appeal Exists for the Shifflets
This Court has noted that “[b]ecause temporary orders are not appealable,
mandamus is an appropriate remedy when a trial court abuses its discretion in
issuing temporary orders in a [SAPCR].” In re McDaniel, 408 S.W.3d at 396
(citing In re Derzapf, 219 S.W.3d at 335). “Similarly, an order denying a motion
to dismiss for lack of standing in a [SAPCR] is not appealable, and mandamus
relief is an appropriate remedy.” Id. (citation omitted). Because the trial court
erroneously dismissed the Shifflets’ intervention, they are in real danger of losing
substantial rights, as they cannot participate as parties to the modification action.
See Wittig, 876 S.W.2d at 306. Thus, the Shifflets lack an adequate remedy by
appeal.
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CONCLUSION
We conditionally grant the mandamus petition and direct the trial court to
vacate its October 22, 2014 order granting Dawn’s motion to dismiss. We remand
the case to the trial court for further proceedings consistent with this opinion. We
are confident that the trial court will promptly comply, and our writ will issue only
if it does not comply within 30 days of the date of this opinion.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
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