In the Interest of R.W.N.R., a Child v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-23-00087-CV
IN THE INTEREST OF § Appeal from the
R.W.N.R., § 90th Judicial District Court
a Child. § of Stephens County, Texas
§ (TC# CV32590)
DISSENTING OPINION
Relying on In re C.J.C., 603 S.W.3d 804, 817 (Tex. 2020), the majority concludes the trial
court abused its discretion in appointing Tamara and Hope as joint managing conservators of
R.W.N.R., with Tamara designated as the conservator with the exclusive right to designate the
child’s primary residence. Because I view In re C.J.C. as factually and procedurally
distinguishable, I disagree.
I.
For several years prior to trial, Tamara exercised actual care, custody, and control of
R.W.N.R., on a daily basis, and without Hope’s actual presence or involvement. Only as of January
2020 did Hope exercise supervised visitation with R.W.N.R. based on agreed temporary orders.
Tamara thus requested and was granted general standing to seek joint managing conservatorship
of R.W.N.R. due to her continuous exercise of a parent-like role. See TEX. FAM. CODE ANN.
§ 102.003(a)(9).
As a general standing provision, this provision allows a nonparent to file an original suit
affecting the parent-child relationship when the nonparent “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.” See TEX. FAM. CODE ANN. § 102.003(a)(9). Following a trial, the court specifically
determined that R.W.N.R. was living with Tamara at least 6 months preceding her appearance in
the case as required by § 102.003(a)(9). It also determined that she provided R.W.N.R.’s care “with
her providing daily physical and psychological needs, and [she] exercised guidance, governance,
and direction similar to that typically exercised on a day-to-day basis by parents.”
Hope never contested Tamara’s status as having actual care, control, and possession of
R.W.N.R. . Moreover, the majority does not substantively address Tamara’s parent-like status nor
address its full impact on the analysis. Rather, the majority simply states that, even though Tamara
has “undoubtedly served the role of a parent to R.N.W.R.,” it otherwise concludes there was no
evidence to suggest that Hope was presently unfit. This conclusion assumes that a party who has
established standing as a child’s actual parent under § 102.003 of the Family Code is nonetheless
required to overcome a fit-parent presumption in the same manner as currently required of a
nonparent who has not been expressly granted general standing. Based on the plain language of
the standing provision, and the constitutional implications of it as explained in Interest of H.S.,
550 S.W.3d 151, 161 (Tex. 2028), I disagree.
By its plain text, the general standing provision does not include a requirement to overcome
a presumption of fitness as is required by other provisions. See TEX. FAM. CODE ANN.
§ 102.003(a)(9) (providing general standing to a person who has had actual care, control, and
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possession of the child for the requisite period who is not a foster parent); but see TEX. FAM. CODE
ANN. § 102.004(a) (stating a grandparent may file suit requesting managing conservatorship if
there is satisfactory proof that the relief “is necessary because the child’s present circumstances
would significantly impair the child’s physical health or emotional development”).
Addressing the constitutional implications of nonparent standing, the Supreme Court of
Texas confirmed it “does not unconstitutionally interfere with parents’ fundamental liberty interest
in raising their children.” In Interest of H.S., 550 S.W.3d at 163. Rather, it found “the nonparent
standing threshold in Texas is . . . much higher and narrower than the one rejected in Troxel.” Id.
at 162. Instead, once standing is established under § 102.003(a)(9), “the merits of a SAPCR
petition are governed by other statutes that contain additional safeguards.” Id. (citing, e.g.,
TEX. FAM. CODE ANN. § 153.131)(providing that the appointment of the parent or parents as
managing conservators is in the child’s best interest unless the court finds that the appointment
“would significantly impair the child’s physical health or emotional development”). When
properly construed, § 102.003(a)(9) recognizes the distinction between ordinary third parties and
those “who have played an unusual and significant parent-like role in a child’s life.” Id. Ultimately,
the Supreme Court observed that “the Family Code recognizes that a narrow class of nonparents,
who have served in a parent-like role to a child over an extended period of time, may come to court
and seek to preserve that relationship, over a parent’s objections.” Id. at 163.
In In re C.J.C., Justice Lehrmann noted in her concurring opinion that the Supreme Court
was not presented with the opportunity to evaluate the propriety of an award of conservatorship
under § 102.003(a)(9) in light of the fit-parent presumption. 603 S.W.3d at 823. Thus, she
cautioned that the “question of the degree of evidence necessary to overcome the presumption that
a fit parent’s decisions are in the best interest of the child when a nonparent who has acted in a
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parent-like role seeks visitation remains unanswered.” Id. at 823–24 (Lehrmann, J. concurring)
(citing Troxel, 530 U.S. at 73 (recognizing that “the constitutionality of any standard for awarding
visitation turns on the specific manner in which that standard is applied”)). Nevertheless, the Court
observed in In the Interest of H.S., that “[p]arental rights are fundamental, but neither the Texas
Family Code nor the Constitution treats them as plenary and unchecked.” 550 S.W.3d at 163.
Here, the record is clear that Tamara was not merely seeking grandparent visitation over
an objection from the child’s biological mother. See TEX. FAM. CODE ANN. § 153.433(a) (creating
a cause of action for a biological or adoptive grandparent seeking reasonable possession or access
to their grandchild over the objection of the custodial parent). Rather, Tamara sought managing
conservatorship based on the fact that R.W.N.R. had lived exclusively with her since May 2019,
and she exercised actual care, control, and possession of him during that continuous period.
Moreover, during the pendency of the case, her primary role in caring for R.W.N.R. continued
uninterrupted while the temporary order restricted Hope to supervised visitation only.
On this record, Tamara assumed the parental role and requested conservatorship as a de
facto parent. See Troxel, 530 U.S. at 100–01 (noting that “a fit parent’s right vis-à-vis a complete
stranger is one thing; her right vis-à-vis another parent or a de facto parent may be another”). Thus,
her position differs significantly from that of a nonparent seeking conservatorship or possession
and access without having the same statutory-based standing. See, e.g., In re C.J.C., 603 S.W.3d
at 809 (nonparent stepfather seeks conservatorship asserting he cared for the child along with the
biological mother while she was alive); Interest of A.V., No. 05-20-00966-CV, 2022 WL 2763355,
at *1–2 (Tex. App.—Dallas July 15, 2022, no pet.) (grandparents seeking conservatorship because
the child lived with them on occasion and sometimes with mother). These cases do not address the
situation of when a party is requesting conservatorship through § 102.003(a)(9) and whether the
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fit-parent presumption is applicable. Rather, each note that the question remains unanswered. See
In re C.J.C., 603 S.W.3d at 809 (stating the issue is not before the court); Interest of A.V., 2022
WL 2763355, at *9 (remanding the case to the trial court noting “Grandparents’ failure to
overcome the fit-parent presumption and the statutory parental presumption does not deprive them
of standing to be considered for conservatorship or access” through § 102.003(a)(9)).
Because the standing provision on which Tamara relies does not require her to additionally
establish Hope’s lack of fitness, I see no legal basis to apply it. Rather, the merits of both Tamara’s
and Hope’s SAPCR petitions are governed by § 153.131 of the Family Code. In the Interest of
H.S., 550 S.W.3d at 162. Following that provision, I would conclude the evidence at trial was
legally and factually sufficient to support the trial court’s appointment of Tamara and Hope as
joint managing conservators and with Tamara appointed the conservator with the exclusive right
to designate the primary residence of the child.
Here, R.W.N.R.’s counselor testified she began her work with R.W.N.R. in October 2018,
when his father faced criminal charges and R.W.N.R. needed therapeutic help. She testified that
when Hope left R.W.N.R. in his father’s care, he suffered a “huge setback” in his abandonment
schema and part of his detachment disorder. The counselor described R.W.N.R.’s diagnosis as a
generalized anxiety disorder with an adjustment disorder. This included food aversion and other
behavioral issues. She described he was not adjusting well to rapid change and instability.
After his father was incarcerated, R.W.N.R. began living exclusively with Tamara who had
been living next door to the family’s home. When describing R.W.N.R.’s relationship with
Tamara, the counselor described that she had observed they were very bonded, as he was very
attached to his grandmother. Tamara was participating actively in his counseling and treatment
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plans. She described the consistency of care in Tamara’s home, pointing out that she was invested
in his treatment plan.
She also testified to her concerns for R.W.N.R. when he visited with Hope in light of his
ongoing treatment. She described that after his last visit, R.W.N.R. became increasingly anxious.
She testified he faced food punishments with Hope. Specifically, Hope and her aunt would serve
him more food than he could eat, and he was only allowed to eat when sitting at the table. When
he did not eat as much as they thought he should, he reported that he was placed in time out for up
to two hours in one instance. There was also yelling and arguments around food. Given how his
anxiety manifested in food aversion, the counselor opined that R.W.N.R. needed consistent
planning around meals.
Finally, the counselor reiterated it was important for R.W.N.R. to stay with the caregiver
he had bonded with and feels most comfortable with and where he has formed school and church
attachments. She opined it was important to maintain stability and keep his bonds and attachments
in place while he worked to overcome his anxiety and other disorders. For these reasons, the
counselor opined that it would create a significant risk to R.W.N.R.’s emotional and physical
development if his primary residency was significantly changed. She was concerned for his mental
and physical well-being because, if his food aversion continued in the direction it had been
progressing, he would continue to lose weight and his physical health would deteriorate. She also
described that his anxiety would worsen, which disrupted cognitive abilities needed for school.
After reviewing the record in its entirety, I would conclude there was sufficient evidence presented
to support the trial court’s ruling and no abuse of discretion was shown. Because the Court
concludes otherwise, I respectfully dissent.
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GINA M. PALAFOX, Justice
October 25, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
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