in Re Joseph Andre Davis

ACCEPTED
01-15-00408-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/5/2015 7:01:51 AM
CHRISTOPHER PRINE
CLERK
FIRST COURT OF APPEALS
HOUSTON, TEXAS FILED IN
1st COURT OF APPEALS
RE: Case No. 01-15-00408-CV HOUSTON, TEXAS
8/5/2015 7:01:51 AM
IN RE JOSEPH ANDRE DAVIS CHRISTOPHER A. PRINE
Clerk
APPELLANT
V.
FLOYD D. LOPEZ
APPELLEE
From cause No. 2014-58410
in the 245th District Court of
Harris County, Texas
The Honorable Roy L. Moore
__________________________________________________________
MOTION FOR CLARIFICATION, REHEARING, AND REHEARING EN BANC OF
THE PER CURIAM AFFIRMANCE AND REQUEST FOR A WRITTEN OPINION
AND CERTIFICATION
___________________________________________________________
Appellant, Joseph Andre Davis, pursuant to Rules 47, 48, and 49 of Texas Rules of
Civil Procedures, hereby respectfully move this Court for rehearing, rehearing en
blanc, clarification, certification; written opinion of the Court's July 28, 2015
decision in this matter and request a written opinion, and certification of question
to Texas Supreme Court.
I, Joseph Andre Davis, respectfully request clarification of the Court's order
summarily denying a Writ of Mandamus and Motion to Stay from judgment of the
lower court's decision and their failure to rule on the May 01, 2015 request for a
Writ of Mandamus. I, Joseph Andre Davis, respectfully assert that the Court has
overlooked or misapprehended critical facts and has misapprehended the law. I,
therefore, request a rehearing. I, further, respectfully assert that the case is of
exceptional importance and that this Court's decision to affirm the lower court
conflicts with decisions of the Texas Appellate courts, the Texas Supreme Court
and the U.S. Supreme Court Constitutional and fundamental rights that are
protected by the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution. Therefore, I am requesting a rehearing en banc.
I, Joseph Andre Davis, also respectfully assert that a written opinion would
provide a legitimate, good faith basis for Texas Supreme Court review and request
that this court issue a written opinion regarding its decision to affirm the lower
court.
Finally, Appellant Joseph Andre Davis, requests that this court certify a question
of great public importance to the Texas Supreme Court. My arguments are set
forth below.
I. Motion for Clarification
Because this Court issued only a per curiam affirmance, Appellant Joseph Andre
Davis can only assume that the Court granted summary affirmance under Texas R.
App. P. I request clarification of the Court's position that no preliminary basis for
reversal has been demonstrated.
II. Motion for Rehearing
Because the Court denied Writ of Mandamus Appellant Joseph Andre Davis filed
May 01, 2015, and First Court Of Appeals did not provide a written opinion for its
decision to affirm the lower court, it is difficult to ascertain the extent of the
Court's misapprehending or overlooking of the facts and law. However, it seems
that the court must have misapprehended or overlooked numerous matters
because of its failure to grant a Writ of Mandamus and its failure to issue a
written opinion in so vital a matter. Appellant Joseph Andre Davis raised many
arguments of reversible error involving the lower court's lack of Subject Matter
Jurisdiction, the application of which raises important State and Federal
Constitutional issues that make it no longer equitable to enforce the trial court's
earlier order authorizing standing to the maternal grandparents. The 245th
District Court did not hear oral argument in this matter nor did it address the
merits of any of these issues. Thus, it is apparent that the Court misapprehended
or overlooked important matters of fact and law.
III. Motion for Rehearing En Banc
Under the exceptional importance standard, cases involving important
precedents likely to affect other cases merit rehearing en banc. The Petitioner
Floyd Daniel Lopez who is seeking managing conservatorship has the burden to
prove standing. In re Smith, 262 S.W. 3d 463,465 (Texas App. Beaumont 2008)
In re Richard Scheller, Relator, "A trial court abuses it discretion when a
grandparent does not overcome the presumption that a parent acts in his or her
child's best interest by proving that denial of or access to the child would
significantly impair the child's physical or emotional well-being." Derzapf, 219 S.W.
at 333 (quoting Texas Family Code Sec. 153.433 (a) (2).
The Trial Court erred because it did not indicate any reason why "it should
interfere with the parent-child relationship." In re Mays-Hooper, 189 S.W.3d at
778 (Texas)
Troxel v.Granville, U.S. 57 (2000). The Court held that a trial court's order for
grandparent access unconstitutionally infringed on the parent's fundamental
liberty interest where there was no evidence that the parent was unfit, the
children's health and well-being would suffer, or that the parent intended to
exclude grandparent access entirely.
Parent's fundamental liberty interests in the care, custody, and control of her
children is of public importance. It also amounts to issues of exceptional
importance within the terms of Constitutions of this State and the United States.
In addition, the error regarding the violations of Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution raised in Appellant, Joseph Andre
Davis' initial brief is of exceptional importance. The U.S. Supreme Court, the
Texas Supreme Court and this Court have all recognized that parental interests
are a fundamental right protected by the Due Process Clause of the 14th
Amendment to the U.S. Constitution". In re Pensom, 126 S.W. 3d 251,254 (Tex.
App. San Antonio 2003, orig. proceeding citing Troxel v. Granville, 530 U.S.
57,65,120 S.Ct 2054,147 L ed 2d 49 (2000). "Texas statutes are intended by the
legislature to be in compliance with the Constitutions of this State and the United
States." In re K.K.C., 292 S.W.3d at 792 (citing TEX.GOV'T CODE ANN. 311.021 (1)
(Vernon 2005).
"The power of a trial court to adjudicate disputes between a parent and a non-
parent, and to enforce its own orders contrary to a parent's decisions concerning
her children, constitutes state involvement that implicates the parent's
fundamental liberty interests in the care, custody, and control of her children."
See Troxel, 530 U.S. at 65-76, 120 S. Ct. 2054. Appellant Joseph Andre Davis has
raised the lower court's violation of subject matter jurisdiction in an appeal. This
Court's summary affirmance of this alleged error and the precedent established
thereby is an issue of exceptional importance that merit en banc review.
Finally, the precedents set by this Court's decision will also affect this Court's
future rulings on issues of the Texas statutory and U.S. and Texas Constitutional.
The interest of parents in the "care, custody, and control" of their children "is
perhaps the oldest of the fundamental liberty interests" recognized by the U.S.
Supreme Court. (Troxel v.Granville, 530 U.S. 57,645,120 S. Ct. 2054,147 L Ed.2d 49
(2000). Furthermore, this State has long recognized that the "natural right which
exists between parents and their children is one of Constitutional dimensions."
See Wiley v. Spratlan, 543 S.W. 2d 349,352 (Tex. 1976); see also Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. San
Antonio 2003, orig. proceeding). In re K.K.C., 292 S.W.3d at 792(footnote
omitted). It, therefore, greatly implicates the important state and federal
constitutional issue of the interest of parents in the "care, custody, and control"
of their children. An issue involving standing is a component of subject matter
jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under
Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 s.w.2d. 440,443-44 (Tex.
1993). The standard of review applicable to subject matter jurisdiction also
applies to standing ld. at 446. Under that standard, Appellee, Floyd Daniel Lopez
is required to allege facts affirmatively demonstrating the trial court's jurisdiction
to hear the case. ld. Under Texas Family Code102.003 (11) a person with whom
the child and the child's guardian, managing conservator, or parent have resided
for at least six months ending not more than 90 days preceding the date of the
filing of the petition if the child's guardian, managing conservator, or parent is
deceased at the time of the filing of the petition is where Appellee, Floyd Daniel
Lopez claims to have standing. Deceased Parent " A stepparent who has resided
with the child can seek standing upon the death of the child's natural parent:
Subsection 102.003 (a) (11) was designed as a "stepparent" statute affording
standing to, among others, a stepparent who helps raise a child when the
stepparent's spouse , one of the child's parents dies. A traditional application
would indicate that upon the death of the mother, as a sole managing
conservator of the child, her current husband would have standing. Note,
however, that the statutory language is not limited merely to stepparents; literally
it can also include an unmarried cohabitant or even an adult sibling of the child of
a deceased parent. Appellee Floyd Daniel Lopez fits in neither category nor his
daughter, Sandra Lopez, J.A.D.'s mother was not sole managing conservator. We
were joint managing conservators, she was the custodial joint managing
conservator.
On review, appellate courts "construe the pleadings in favor of the plaintiff and
look to the pleader's intent." ld A party's standing to pursue a cause of action is a
question of law. See N. Alamo Water Supply Corp. v. Tex Dep't of Health, 839
S.w.2d 455,457 (Tex.App.-Austin 1992, writ denied). Consequently, we review the
trial court's actions de novo. Mayhew v. Town of Sunnyvale, 964 s.W.2d 922,928
Tex. 1998).
Appellant Joseph Andre Davis argues Subject Matter Jurisdiction must be decided
if this court notices the issue at any time during an appeal as noted, it is settled
that question of subject matter jurisdiction cannot be waived, and must be
decided if raised at any time, including on the Court's own motion and even for
the first time at the oral argument on appeal. See Smith v. City of Santa Fe, 2007-
NMSC-055,10,142N.M.786,171 P.3d 500 (Before a court can review the
case...jurisdictional issues should always be resolved even if not preserved");
Wilson v. Denver, 1998-NMSC-016, 8, 125 N,tvt 308,961 P.2d 153 ("A
jurisdictional defect may not be waived and may be raised at any stage of the
proceedings, even sua sponte by the appellate court.");Parental interests are a
fundamental right protected by the Due Process Clause of the Fourteenth
Amendment that warrant the close consideration of this Court, it would seem
that this would also affect this Court’s rulings on appeals from other future
appeals of fundamental liberty interests” recognized by the United States
Supreme Court. The Texas Supreme Court has held that a child must be in
imminent danger of physical or emotional harm for there to be a serious question
concerning the child’s physical health or welfare. The grandparents in In the
Interest of ALS, filed suit requesting appointment as managing conservators after
the death of their son. The court cases show that a challenge to a grandparent’s
standing asserted under Texas Family Code § 102.004(a)(1) requires the
grandparent to make a prima facie showing of potential harm. The grandparents
must be fully prepared to put on evidence of facts that will demonstrate a serious
question or concern about the child’s health or welfare. A grandparent seeking
custody has an incredibly high burden of proof to meet the standing requirements.
This Court’s summary affirmance of the lower court’s decision has significant
precedential impact on parent's fundamental liberty interest where there was no
evidence that the parent was unfit, that the children's health and well-being
would suffer, or that the parent intended to exclude grandparent access entirely,
thereby making this an issue of exceptional importance warranting en banc
review.
Situations where petitions for a writ of mandamus is appropriate in family law
cases include (1) standing and jurisdiction (under UCCJEA or UIFSA, (2)
appointment of a receiver in temporary orders, (3) change of the conservator
with the right to designate the primary residence of a child in temporary orders,
(4) certain discovery disputes, (5) and failure of the trial court to enter an order
after rendition (the court’s oral ruling on the record). In these situations, given
the issues at stake, it is often appropriate to request that the court of appeals
enter an emergency stay prohibiting the trial court from taking any action to
enforce or proceed with the challenged order until the court of appeals can
decide the mandamus case. The First Court of Appeals denied my child custody
Writ of Mandamus of a non-parent (grandparent) custody lawsuit and my Motion
of Stay without explanation most situations above were included in my petition
for a Writ of Mandamus and a Motion to Stay.
Jurisdiction and Venue of Child Custody Lawsuits
Texas residents: Texas has very specific laws to determine whether a custody case
has been filed in the correct court. Disputes arise when one parent does not reside
in Texas or one parent does not reside in the same county as the other parent. In
such cases, Texas law will determine which the proper court to hear the dispute is.
Texas Residents: It is a fairly simple procedure to determine the proper court for
the child custody dispute when all parties and the child reside in Texas. In such
case, Texas will have jurisdiction to hear the matter. It is only necessary to
determine the proper county the suit should proceed in. Section 103.001 of the
Family Code provides that an original suit must be filed in the county the child
resides in. Petitioner Floyd Daniel allegedly filed Original Child custody lawsuit
on October 07, 2014. 245th District Court's continuing exclusive jurisdiction
under Chapter 155 was terminated May 30, 2014.
A child resides in the county where the child's parents reside or the child's parent
resides, if only one parent is living. J.A.D. and her only surviving parent, Joseph
Andre Davis was residing, at the time the lawsuit was allegedly filed by Petitioner
Floyd Daniel Lopez in Harris County 245th District Court on October 7, 2014, in
Montgomery County and continue to reside in Montgomery County. Harris
County 245th District Court has been and still is aware of that fact.
If venue of a suit is improper in the court in which an original suit is filed and no
other court has continuing, exclusive jurisdiction of the suit, on the timely motion
of a party other than the petitioner, the court must transfer the proceeding to the
county where venue is proper. This Court’s summary affirmance of the lower
court’s decision has significant precedential impact on parent's fundamental liberty
interest where there was no evidence that the parent was unfit, that the children's
health and well-being would suffer, or that the parent intended to exclude
grandparent access entirely, thereby making this an issue of exceptional
importance warranting en banc review.
Rehearing en banc should be granted because such consideration is necessary to
maintain uniformity in the court’s decisions.
1. Motion for rehearing en banc. I express a belief, based on a reasoned and
studied judgment, which the panel decision is of exceptional
importance. I express a belief, based on a reasoned and studied judgment,
that the panel decision is contrary to the following decisions of this court and
that a consideration by the full court is necessary to maintain uniformity of
decisions in this court, other Texas Appellate Courts and State Supreme
Court. (See appendix A)
2. Motion to request a written opinion. I express a belief, based upon a
reasoned and studied judgment, that a written opinion will provide a
legitimate basis for Supreme Court review because this case involves matters
that directly implicate fundamental rights protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
PRAYER
Respondent prays for justice to prevail, that the Court grants this petition
and orders Respondents suit, Cause No. 2014-58410 to be dismissed with
prejudice and that it will not be granted a trial. Relator prays that the court
orders underlying respondents Floyd Daniel Lopez, Irma Olga Jimenez and
their Counsel, Norman Eugene Lester Jr. to pay Relator's reasonable
expenses and attorney's fees including interest incurred in presenting or
opposing the motion, and if no due diligence is shown the court may award to
the prevailing party all costs for inconvenience, harassment, and out-of-
pocket expenses incurred or caused by the subject. Relator prays that
underlying respondents Floyd Daniel Lopez and Irma Olga Jimenez will be
denied further possession of, access to and all contact with Relator's minor
child J.A.D. Relator prays that all adverse interlocutory rulings that merged
in the judgment issued by 245th District Court on April 10, 2015 be rendered
null and void including the judgment to pay Amicus Attorney/Guardian
Ad Litem/Parenting Facilitator the sum of $3,062.50 or any sum at
all. Relator prays for general relief and all other relief the court
deems just and proper.
_________________________08/04/2015
Joseph Andre Davis, Pro Se
3714 Pinebrook Hollow Ln.
Spring, Texas 77386
Tel: (832)660-7207
Jdavis1103@hotmail.com
CERTIFICATION OF SERVICE
I certify that a true copy of the above was served on Respondents Floyd
Daniel Lopez and Irma Olga Jimenez's Counsel Norman Eugene Lester Jr,
by E-Mail: HouTxLawyer@aol.com and served by E-File to 245th District
Judge Roy L. Moore and Associate Judge James Cooper in accordance with
the Texas Rules of Civil Procedure on
_________________________
08/04/2015
JOSEPH ANDRE DAVIS, PRO SE
I, ________________certify that I have reviewed the petition and concluded
that every factual statement in the petition is supported by competent evidence
included in the appendix or record.
APPENDIX A
A.TEXAS SUPREME COURT CASES WITH OPINIONS
in re Chambless No. 07-0767 ,51 Texas S.Ct. j111, (Texas 2008) (grandparent
visitation improperly granted, mother's due process rights disregarded)
Mandamus granted.
In re mays-Hooper, 189 S.W.3d 777 (Texas 2006) (Parents prevail in dispute
over grandparent visitation) Supreme Court grants mandamus relief.
In re Ricky Derzapf, No. 06-0669,219 S.W. 3d 327 (Texas 2007) , Texas
Supreme Court grants mandamus to vindicate natural parent's superior
rights.
CONTROLING U. S. SUPREME COURT PRECEDENT
Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed 49 (2000) ( parents
fundamental right to decide who has access to their child.
A plaintiff must have standing for the court to have subject-matter
jurisdiction to decide the merits of the plaintiff's claims. See id.; Farmers
Tex. County Mut. Ins. Co. v. Romo, 250 S.W.3d 527, 532 (Tex.App.-
Austin 2008, no pet.).
The plaintiff must allege facts that affirmatively demonstrate the court's
jurisdiction to hear the cause. Texas Ass'n of Bus., 852 S.W.2d at 446.
The general test for standing is whether there is a real controversy between
the parties that will actually be determined by the judicial declaration
sought. Id.
Standing focuses on the question of who may bring a lawsuit. Patterson v.
Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998).
STANDING
To bring an action in Texas, a party must have standing. E.g.,
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
Standing is a component of subject-matter jurisdiction. Douglas v. Delp,
987 S.W.2d 879, 882 (Tex. 1999);
OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726,
735 (Tex. App.-Dallas 2007, pet. denied); see also DaimlerChrysler Corp. v.
Inman, 252 S.W.3d 299, 304 (Tex. 2008)
(“A court has no jurisdiction over a claim made by a plaintiff without
standing to assert it.”) (footnote omitted). Thus, standing cannot be waived,
and we may examine standing sua sponte if necessary. See OAIC, 234
S.W.3d at 735;
see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-
46 (Tex. 1993) (noting that standing “may be raised for the first time on
appeal by the parties or by the court”).
The general test for standing is whether there is a real controversy between
the parties that will actually be determined by the judgment sought. Tex.
Ass'n of Bus., 852 S.W.2d at 446.
“To establish standing, a person must show a personal stake in the
controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996) (per curiam).
Standing must exist at the time a plaintiff files suit; if the plaintiff lacks
standing at the time of filing, the case must be dismissed, even if the
plaintiff later acquires an interest sufficient to support standing. Doran v.
ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 WL 451879, at *2 (Tex.
App.-Dallas Feb. 21, 2008, no pet.) (mem. op.);
Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 703 (Tex. App.-Fort Worth 2006,
pet. denied). And the standing doctrine requires a controversy to continue
to exist between the parties at every stage of the legal proceedings,
including the appeal. City of Dallas v. Woodfield, 305 S.W.3d 412,
416 (Tex. App.-Dallas 2010, no pet.).
Standing is a component of subject-matter jurisdiction. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993); see also
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
“A court has no jurisdiction over a claim made by a plaintiff without standing
to assert it.”). If a party lacks standing to bring an action, the trial court
lacks subject-matter jurisdiction to hear the case.
Tex. Ass’n of Bus., 852 S.W.2d at 444–45.
“[S]tanding focuses on the question of who may bring an action.” Patterson
v. Planned Parenthood, 971S.W.2d 439, 442 (Tex. 1998).
The general test for standing is whether there is a real controversy
between the parties that will actually be determined by the judgment sought.
Tex. Ass’n of Bus., 852 S.W.2d at 446.
“To establish standing, a person must show a personal stake in the
controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996).
Standing to sue may be predicated upon either statutory or common law
authority. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252 (Tex.
App.—Dallas 2005, no pet.);
see Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001). The common
law standing rules apply except when standing is statutorily
conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153
(Tex. App.—El Paso 2007, pet.denied).
Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746,
774 (Tex.2005) ("Standing to assert a constitutional violation depends on
whether the claimant asserts a particularized, concrete injury.")
TEXAS SUPREME COURT CASES
The Standing Doctrine in the Texas Supreme Court
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-446
(Tex. 1993) (standing, as a matter of subject matter jurisdiction, may
be raised for the first time on appeal).
Standing by Statute
The Constitution requires standing to maintain suit. Williams v. Lara,
52 S.W.3d 171, 178
B.CASES DECIDED BY TEXAS COURT OF APPEALS
In re B.N.S. No. 247 S.W.3d 807 (appeal from order granting grandparents
possession of their three grandchildren. see Texas Family Code section
153.433, because grandparents did not meet statutory requirements of section
153.433 of the family code, appeal court reversed trial court' s judgment and
rendered judgment that grandparent's petition is denied) .
In re J.R.D. No. 05-06-01554 (Texas 2007) (trial court order granting access
reversed by court of appeals; grandparents did not meet burden set by statute
to rebut parental presumption.
In re D. R. D. No. 05-06-00666 (Texas 2008) (grandparent access denied , no
evidence to support applicable standard, i.e., that denial of access would
significantly impair the child's physical health or emotional well- being)
In re J.P.C. No. 02-07-00184 (Texas 2008) (death of a parent, grandparent
intervention unsuccessful, access order reversed by court of appeals.)
In re Taylor v. Taylor, 254 S.W. 3d S.W. 527 (Texas 2008) (grandparent v.
parent SAPCR judgment on jury verdict reversed)
In Interest of C.A.M.M., 243 S.W.3d 211 (Texas 2007) (SAPCR, non parent
custody, grandparents must overcome presumption that parents act in the
best interest of child)
Whitworth v.Whitworth 222 S.W.3d 616 (Texas 2007 no Pet.) (grandparents
and siblings lacked standing)
In re J.O., No 04-07-00752 (Texas 2008 No. Pet.) (grandparents as temporary
managing conservators, parental presumption affirmed)
In re de Fillippi, No. 04-07-00506, 235 S.W.3d 319 (Texas 2007) (Children
ordered returned to father after mother's death, superior custodial rights
compared to grandparents)
In re Sanchez, No. 04-06-00809, 228 S.W.3d 214 (Texas 2007) (trial court
failed to apply law properly, in suit by grandparents to modify parent child
relationship writ of mandamus is granted.)
In re Banta v. Texas DFPS, No. 13- 06-00548 (Texas 2007) (grandparent
access denied)
In re Baggs v. Becker , No. 03-07-00731 (Texas 2009 pet. denied)
In re L.K.W.G., No. 06-06-00073 (Texas 2007 (Pre se grandparent suit motion
for visitation frivolous suit finding, sanctions imposed)
DETERMINATION OF STANDING
Standing, a necessary component of subject-matter jurisdiction, is a
constitutional prerequisite to maintaining a suit under Texas law. Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
As a necessary component of a court's subject-matter jurisdiction,
standing cannot be waived and can be raised for the first time on
appeal. Id. at 445-46.
Appellate courts are obligated to review sua sponte issues affecting
jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).
See also Bowles v. Wade, 913 S.W.2d 644, 647 (Tex. App.-Dallas 1995,
writ denied); Centurion Planning Corp., Inc. v. Seabrook Venture II,
176 S.W.3d 498, 508 (Tex. App.-Houston [1st Dist.] 2004, no pet.).
Whether a trial court has subject-matter jurisdiction is a question of
law that is reviewed de novo. See Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998).
To have standing, the pleader bears the burden of alleging facts that
affirmatively demonstrate the court's jurisdiction to hear the cause.
Tex. Air Control Bd., 852 S.W.2d at 446.
We review the pleadings and the entire record to determine if there is
evidence establishing subject-matter jurisdiction. Dallas County
Appraisal Dist. v. Funds Recovery,887 S.W.2d 465, 469 (Tex. App.-
Dallas 1994, writ denied).
In an appeal from a bench trial, findings of fact carry the same weight
as a jury verdict. Walker v. Cotter Prop., Inc., 181 S.W.3d 895, 899 (Tex.
App.-Dallas 2006, no pet.).
Unchallenged findings of fact are conclusive on appeal unless the
contrary is established as a matter of law or there is no evidence to
support the findings. Toles v. Toles, 45 S.W.3d 252, 265 n.6 (Tex.
App.-Dallas 2001, pet. denied) (citing McGalliard v. Kuhlmann, 722
S.W.2d 694, 696 (Tex. 1986)).
Where an appellant attacks the trial court's findings of fact on legal or
factual sufficiency grounds, the applicable standard of review is the
same as that to be applied in the review of jury findings. Walker, 181
S.W.3d at 899.
In evaluating the legal sufficiency of the evidence to support a
finding, we must determine whether the evidence as a whole rises to a
level that would enable reasonable and fair-minded people to differ in
their conclusions. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198
S.W.3d 408, 414 (Tex. App.-Dallas 2006, pet. denied) (citing City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Anything more than a scintilla of evidence is legally sufficient to
support a challenged finding. Walker, 181 S.W.3d at 899.
More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about
the existence of some vital fact. Id.
We review the trial court's conclusions of law de novo to determine
whether they are correct. See McIntyre v. Comm'n for Lawyer
Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, pet. denied);
Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 906
(Tex. App.-Dallas 2005, pet. denied). Conclusions of law must be
upheld on appeal if any legal theory supported by the evidence
sustains the judgment, and will be reversed only if the conclusions
are erroneous as a matter of law. See McIntyre, 169 S.W.3d at 807.
B. Applicable Law
1. Standing, Generally
In Texas, the standing doctrine requires that (1) there be “a real
controversy between the parties,” and (2) that real controversy “will
be actually determined by the judicial declaration sought.” Nootsie,
Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.
1996) (quoting Tex. Air Control Bd., 852 S.W.2d at 446).
“The issue of standing focuses on whether a party has a sufficient
relationship with the lawsuit so as to have a 'justiciable interest' in its
outcome.” Austin Nursing Ctr. v. Lovato, 171 S.W.3d
845, 848 (Tex. 2005) (quoting 6A Charles Alan Wright, Arthur R. Miller,
and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d § 1559, 441 (2d ed. 1990)).
“The determination of whether a plaintiff possesses standing to
assert a particular claim depends on the facts pleaded and the cause
of action asserted.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853
(Tex. App.-Fort Worth 2005, no pet.). See also M.D. Anderson Cancer
Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001) (analyzing standing in
the context of asserted claim).
When standing has been statutorily conferred, the statute itself
serves as the proper framework for a standing analysis. Everett, 178
S.W.3d at 851. The plaintiff must allege and show how he has been
injured or wronged within the parameters of the language used in the
statute. Id.
STANDING
FOR THE NOT-SO-NUCLEAR FAMILY
ANGELINE BAIN
abain@gbfamilylaw.com
AIMEE PINGENOT
apingenot@gbfamilylaw.com
Goranson, Bain, Larson, Greenwald, Maultsby & Murphy, PLLC
8150 North Central Expressway, Suite 1850
Dallas, Texas 75206
(214) 373-7676
KEVIN FULLER
kevin@koonsfuller.com
EMILY MISKEL
emily@koonsfuller.com
KoonsFuller, P.C.
1717 McKinney Avenue, Suite 1500
Dallas, Texas 75202
(214) 871-2727
Innovations - Breaking Boundaries in Custody Litigation
The University of Texas School of Law
Houston, Texas
January 19, 2012
TABLE OF CONTENTS
I. Scope of Article ........................................................................................................................................ 1
II. What is Standing? ..................................................................................................................................... 1
A. Common Law .................................................................................................................................... 1
B. Specific Statutory Authority.................................................................................................................. 1
C. Parental Presumption............................................................................................................................. 2
III. Standing Provisions, Organized by Client ............................................................................................ 2
A. Grandparents ...................................................................................................................................... 2
1. General Standing for Conservatorship Under Texas Family Code §102.003 ................................... 2
2. Standing Under Texas Family Code §102.004 .................................................................................. 3
3. Standing to Intervene ......................................................................................................................... 4
4. Possession and Access by a Grandparent Under the “Grandparent Access Statute” ........................ 5
B. Siblings .................................................................................................................................................. 6
1. Managing Conservatorship ................................................................................................................ 6
2. Possessory Conservatorship .............................................................................................................. 6
3. Access ................................................................................................................................................ 6
C. Aunts, Uncles, and Other Relatives within the Third Degree of Consanguinity .................................. 7
1. Definition of Consanguinity .............................................................................................................. 7
2. Both Parents Deceased ...................................................................................................................... 7
3. Living Parent(s) ................................................................................................................................. 8
4. Possessory Conservatorship .............................................................................................................. 8
D. Stepparents......................................................................................................................................... 8
1. Deceased Parent ................................................................................................................................. 8
2. Living Parents .................................................................................................................................... 9
E. Non-relative ........................................................................................................................................... 9
F. Foster parents ...................................................................................................................................... 11
1. Family Code 102.003(a)(12) ........................................................................................................... 11
2. Family Code 102.004(b) .................................................................................................................. 11
3. Family Code 102.003(c) .................................................................................................................. 11
G. Prospective Adoptive Parent Standing ............................................................................................ 12
1. Family Code 102.003(a)(14) ........................................................................................................... 12
2. Family Code 102.0035 .................................................................................................................... 12
3. In the Interest of S.S.G. ................................................................................................................... 12
H. Same Sex couples ............................................................................................................................ 13
1. Family Code 102.003(a)(9) ............................................................................................................. 13
2. Same Sex Adoption ......................................................................................................................... 16
I. Designated Guardian: Connecting the Probate Code to the Family Code .......................................... 17
J. Standing to Adjudicate Parentage ....................................................................................................... 17
IV. Challenging Standing .......................................................................................................................... 18
V. Appendix A, Texas Family Code Standing Provisions ....................................................................... 19
A. Chapter 102...................................................................................................................................... 19
B. Chapter 153 ......................................................................................................................................... 21
C. Chapter 156 ......................................................................................................................................... 22
D. Chapter 160...................................................................................................................................... 23
i
Under the Texas Constitution, the standing
I. Scope of Article requirement is also derived from the open courts
Standing is a mandatory requirement, but provision, which contemplates access to the courts
fitting your case to one of the many options under only for those litigants suffering an injury.
the Family Code can be complicated. The goal of Specifically, the open courts provision provides:
this paper is to discuss how to apply standing “All courts shall be open, and every person for an
requirements from a client-based perspective. The injury done him, in his lands, goods, person or
paper is organized by type of person seeking reputation, shall have remedy by due course of
standing (e.g., grandparent, aunt, foster parent), law.” 2
together with the relevant statutes and caselaw Because standing is a component of subject
applying to each. The paper was designed to matter jurisdiction, it cannot be waived and may
provide useful information, organized by how be raised by any party or by the court on its own
you’re most likely to need to access it. motion. The issue of standing may even be raised
for the first time on appeal.
II. What is Standing? Standing is determined at the time suit is filed
Standing is an issue that family law in the trial court. 3 Standing to sue does not mean
practitioners frequently encounter in a very a right to win, but merely a right to be heard in
practical way. While knowing the explicit court. 4
requirements of the Family Code is key, it can be
useful to have an understanding of the abstract A. Common Law
legal doctrines underlying the requirement of The general test for standing in Texas requires
standing. The Texas Supreme Court opinion in the that there (a) shall be a real controversy between
Texas Ass'n of Business v. Air Control Bd. 1 case the parties, which (b) will be actually determined
contains a thorough discussion of the sources of by the judicial declaration sought. 5 Standing
the standing requirement, which is summarized requires the claimant to demonstrate a
below: particularized injury distinct from that suffered by
Standing is a feature of subject matter the general public—there must be an actual
jurisdiction, which is essential to the authority of a grievance, not a hypothetical or generalized
court to decide a case. Subject matter jurisdiction grievance. 6 This general test incorporates the
is never presumed and cannot be waived. The requirements that courts may only decide real
standing requirement stems from two limitations cases or controversies brought by a person who
on subject matter jurisdiction: the separation of has suffered an actual injury.
powers doctrine and the open courts provision. B. Specific Statutory Authority
The separation of powers doctrine stems from In family cases, it is usually obvious that there
both the United States and Texas constitutions. is a real controversy, but the difficult part of the
Under this doctrine, governmental authority vested test is determining which groups of people should
in one branch of government cannot be exercised qualify as persons who have suffered an injury.
by another, unless expressly permitted by the The Family Code spells out specific categories of
constitution. Thus, courts are prohibited from people that the Legislature has determined meet
issuing advisory opinions, because that is the this standing requirement.
function of the executive branch. The distinctive Standing for Original Suits. Tex Fam. Code
feature of an advisory opinion is that it decides an Chapter 102, §§ 102.003-102.007.
abstract question of law without binding the
parties. An opinion issued in a case brought by a 2
TEX. CONST. art. I, § 13.
3
party without standing is advisory because rather In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas
than remedying an actual or imminent harm, the 2008, no pet.)..
4
Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El
judgment addresses only a hypothetical injury.
Paso 2002, no pet.).
Texas courts, like federal courts, have no 5
Board of Water Engineers v. City of San Antonio, 155 Tex.
jurisdiction to render such opinions. 111, 114, 283 S.W.2d 722, 724 (1955).
6
Glover v. Union Pac. R.R., 187 S.W.3d 201, 209
(Tex.App.-Texarkana 2006, pet. denied); see Brown v. Todd,
53 S.W.3d 297, 302 (Tex.2001); see also In re H.C.S., 219
1
852 S.W.2d 440, 443-48 (Tex. 1993). S.W.3d 33, 34 (Tex. App.-San Antonio 2006, no pet.).
1
Standing for Modifications. Tex. Fam. Code presumption merely to have standing to bring
§ 156.002(b): “A person or entity who, at the suit. 14
time of filing, has standing to sue under
Chapter 102 may file a suit for modification III. Standing Provisions, Organized by Client
in the court with continuing, exclusive A. Grandparents
jurisdiction.” Family law cases have increasingly
The Family Code is more restrictive than the focused on the rights of grandparents both in
constitutional requirement of a justiciable seeking conservatorship and seeking visitation
interest. 7 The common-law criteria regarding with their grandchildren. Many standing issiues
standing do not apply when the Texas Legislature experienced by grandparents are examined below
has conferred standing through a statute. 8 In through statutes and relevant case law.
statutory standing cases, the analysis is a straight
statutory construction of the relevant statute to 1. General Standing for Conservatorship
determine upon whom the Texas Legislature Under Texas Family Code §102.003
conferred standing and whether the claimant in Grandparents, as non-parents litigants,
question falls in that category. 9 have limited options to maintain standing to file an
original SAPCR seeking custody of a grandchild.
C. Parental Presumption If a grandparent can qualify under any of the
In an original suit affecting the parent child fourteen categories of the general standing statute
relationship, Texas courts apply a “parental as set forth above, a grandparent could potentially
presumption.” The presumption that the best have standing to file for custody under § 102.003.
interest of the child is served by awarding custody The most likely applicable categories under the
to the parent is deeply embedded in Texas law. 10 “general” standing statute, would be under
The parental presumption is codified in the Family §102.003(13) which gives standing to a relative of
Code in § 153.131(a). To prevail in an original the child within the third degree of consanguinity
suit, a nonparent must rebut the parental (which includes grandparents), if both parents of
presumption by showing that the appointment of the child are deceased at the time of filing or
the parent would significantly impair the child's through § 102.003(a)(9) which grants standing to a
health or development, or that the natural parent person, other than a foster parent, who has had
has voluntarily relinquished the child. 11 actual care, control, and possession of the child for
Courts have held that modifications are at least six months ending not more than 90 days
different from original suits. Since modification preceding the date of the filing of the petition.
suits are governed by Chapter 156, the parental Tex.Fam.Code § 102.003(a)(9)(13). Under these
presumption contained in Chapter 153 does not statutes, a grandparent may file an original suit for
apply. 12 Further, courts have held that the custody.
constitution does not require the parental In order to have standing under §
presumption to apply in modification actions, 102.003(a)(9), a grandparent must show “actual
because there are different public policy care, control, and possession” and it must be
concerns. 13 within the specified time frame. §102.003(a)(9)
Most importantly for standing, a nonparent does not specifically speak to grandparents, but
does not have to overcome the parental provides means for a grandparent seeking standing
to file an original suit. The statute specifically
7
In re A.M.S., 277 S.W.3d 92, 97 (Tex.App.--Texarkana mentions that the time frame need not be
2009, no pet.). continuous and uninterrupted. Tex. Fam. Code
8
Will. v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). §102.003(b). In the case In the Interest of S.S.J.,
9
In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.--Houston the child’s mother had died and a maternal
[14th Dist.] 2005, orig. proceeding, [mand. denied]); see
grandmother was seeking appointment as
also Tex. Dep't of Protective and Regulatory Servs. v.
Sherry, 46 S.W.3d 857, 859-61 (Tex. 2001). managing conservator. 15 The child at issue had
10
In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).
11 14
Id. at 342. In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston
12
Id. [14th Dist.] 2008, orig. proceeding).
13 15
See In re M.N.G., 113 S.W.3d 27 (Tex.App.--Fort Worth 153 S.W.3d 132, 137 (Tex.App. – San Antonio, 2004, no
2003, no pet.). pet).
2
lived with the grandparents under their care, (2) both parents, the
custody, and control since birth. The father of the surviving parent, or the managing
child argued that even if the grandparents proved conservator or custodian either
the requisite time frame required for standing filed the petition or consented to
under §102.003(a)(9), they must still overcome the the suit.
parental presumption. Id. The court held that the
grandparents had standing under §102.003(a)(9). (b) An original suit requesting
Nothing in the code or case law requires that a possessory conservatorship may
grandparent must go beyond the general not be filed by a grandparent or
requirements of 102.003(a)(9) to obtain standing other person. However, the court
to allege facts showing that that the appointment may grant a grandparent or other
of the parent would significantly impair the child’s person deemed by the court to have
physical health or emotional development in order had substantial past contact with
to have standing. The parental presumption must the child leave to intervene in a
be overcome during a trial on the merits. Id. pending suit filed by a person
Conversely, the court In the Interest of authorized to do so under this
M.J.G and J.M.J.G., denied standing to subchapter if there is satisfactory
grandparents under §102.003(a)(9). 16 The proof to the court that appointment
grandparents did not establish the requisite six of a parent as a sole managing
month period of actual care, custody, and control conservator or both parents as joint
necessary to establish their standing to file an managing conservators would
original SAPCR under §102.003(a)(9). significantly impair the child’s
Additionally, the evidence at trial showed that the physical health or emotional
children’s parents were also living in the house development.
with the grandparents. There was no evidence that
the parents did not also care for the children. Id. (c) Possession of or access to a
child by a grandparent is governed
2. Standing Under Texas Family Code
by the standards established by
§102.004
Chapter 153.
While grandparents may obtain standing
under the general provisions of Texas Family
Section 102.004 applies only to SAPCR’s
Code §102.003 as set forth above, they may also
filed on or after September 1, 2007. Under
obtain standing under additional statutes.
§102.004, in the event if a grandparent does not
Texas Family Code §102.004 provides as
have standing under the general standing statute,
follows:
the fact that the person is a grandparent may
102.004: (a) In addition to the general standing to
confer standing to file either an original suit or an
file suit provided by Section 102.003, a
intervention in a pending suit if the grandparent
grandparent, or another relative of the
can show that the child’s physical health or
child related within the third degree by
emotional stability would be impaired by
consanguinity, may file an original suit
remaining with the parents or if the parents
requesting managing conservatorship if
consent.
there is satisfactory proof to the court that:
Numerous court cases have considered in
what circumstances standing may be conferred
(1) the order requested
upon a grandparent under Texas Family Code
is necessary because the child’s
§102.004.
present circumstances would
A suit by a grandparent requesting
significantly impair the child’s
managing conservatorship may only be filed when
physical health or emotional
the child’s present environment presents a serious
development; or
question concerning the child’s physical health or
16
No. 2-07-105-CV, 2008 WL 344473 (Tex. App.--Fort
Worth).
3
welfare. 17 The Texas Supreme Court has held that to restrict their close relationship with the
a child must be in imminent danger of physical or children, the children would suffer serious
emotional harm for there to be a serious question physical or emotional harm. This was insufficient
concerning the child’s physical health or evidence that the children would be impaired. Id.
welfare. 18 The court cases show that a challenge At least one appellate case has held that the
to a grandparent’s standing asserted under Texas statute does not require that the grandparent and
Family Code § 102.004(a)(1) requires the the child need not have a close bond or a long
grandparent to make a prima facie showing of standing relationship if the “significant
potential harm. The grandparents must be fully impairment” test is met. In In re M.A.M., the
prepared to put on evidence of facts that will court held that the phrase “deemed by the court to
demonstrate a serious question or concern about have had substantial past contact” refers to “other
the child’s health or welfare. A grandparent person” and not “grandparent.” 21 As such, the
seeking custody has an incredibly high burden of mere fact that an intervenor in a pending suit is a
proof to meet the standing requirements. biological grandparent confers standing on the
The grandparents in In the Interest of ALS, grandparent. Id.
filed suit requesting appointment as managing
3. Standing to Intervene
conservators after the death of their son. 19 The Though grandparents may initiate an
father had filed for divorce from the child’s original lawsuit seeking appointment as a
mother months before his death. The child, father managing conservator, they may not file an
and mother sometimes lived at the grandparents’ original lawsuit seeking appointment as a
home. The grandparents filed a petition claiming possessory conservator. Texas Family Code
they had standing under 102.004(a)(1). The §102.004(b) provides that grandparents may only
evidence showed that the mother was bi-polar, had seek appointment as a possessory conservator
been under psychiatric care on and off, through intervention. While the statute requires
hospitalized, and had threatened suicide. Id. The that any person besides a grandparent seeking
grandparents presented an affidavit from an aunt possessory conservatorship have had “substantial
attesting to specific instances of abuse of the child past contact with the child,” such requirement is
by the mother. There was also evidence of the not necessary for grandparents. 22 Courts have
mother’s inability to parent, including failure to held that there is a difference between an original
supervise the child, acts of sexual promiscuity and suit and an intervention, thus necessitating the
pornography in the home, and unsanitary difference in requirements for standing between
conditions in the home. The court held that the both. In the case In the Interest of N.L.G., A Child,
grandparents did have standing under § the court held that filing a suit may create
102.004(a). disruption in a child’s relationship with his or her
Conversely, in another case where the parents, whereas intervening in a pending case,
grandparents sought standing under where the relationship between parent and child is
§102.004(a)(1), the court held that the maternal already disrupted, does not create such
grandparents did not have standing to maintain an disruption. 23 In the case where a relationship is
original suit under §102.004(a)(1). 20 There was no already disrupted, intervention may enhance the
evidence to show that the child’s current court’s ability to adjudicate the cause in the best
circumstances presented a significant impairment interest of the child. Id.
of the child’s physical health or emotional Despite the court’s view that intervention
development of violence witnessed by the might enhance a court’s ability to determine the
children. Id. The entire premise of the best interest of a child, grandparents do not have
grandparents’ argument was that if the court were unfettered access to intervene in any and all
custody matters. The grandparents must show that
17
In re R.D.Y., 51 S.W.3d 314, 325 (Tex. App.—Houston
[1st Dist.], 2001).
18 21
McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont
19
No. 09-05-062 CV, 2006 WL 75369 (Tex. App -- 2001, no pet.).
22
Beaumont). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont
20
In the Interest of M.J.G. and J.M.J.G, No. 2-07-105-CV, 2001, no pet).
23
2008 WL 344473 (Tex. App.--Fort Worth). 238 S.W.3d 828, 830 (Tex.App.—Fort Worth, 2007).
4
there is “significant impairment” of the child’s relief authorized under Section
physical health or emotional development in order 153.433.
to obtain standing in an intervention. 24
Section 153.431 of the Texas Family Code
4. Possession and Access by a Grandparent
governs suits for access, whether original or
Under the “Grandparent Access Statute”
modification and applies to grandparents, both
The Texas Family Code provides a route
biological and adoptive. Texas Family Code
for grandparents to file suit for possession and
§153.432 allows a biological or adoptive
access of their grandchildren in sections 153.421
grandparent to request possession of or access to a
and 153.432 of the Texas Family Code.
grandchild by filing an original suit or a suit for
modification. Courts have held that “significant
153.431: If both of the parents of a child are
impairment” is a high threshold for grandparents
deceased, the court may consider
to overcome. 25 A grandparent may file suit
appointment of a parent, sister, or brother
requesting only possession of or access to a
of a deceased parent as a managing
grandchild without regard to whether the
conservator of the child, but that
appointment of a managing conservator is an issue
consideration does not alter or diminish the
in the lawsuit. Tex.Fam.Code §153.432(b).
discretionary power of the court.
However, the third prong of this section
presents difficulty in many cases as the person
153.432: (a) A biological or adoptive grandparent
filing the lawsuit must execute and attach an
may request possession of or access to a
affidavit on knowledge or belief that contains
grandchild by filing:
along with supporting facts, the allegation that
(1) an original suit; or
denial of possession of or access to the child by
(2) a suit for modification as
the petitioner would significantly impair the
provided by Chapter 156.
child’s physical health or emotional well-being.
(b) A grandparent may request
Tex.Fam.Code 153.432(c). The court shall deny
possession of or access to a
the relief sought and dismiss the lawsuit unless the
grandchild in a suit filed for the
court determines that the facts stated in the
sole purpose of requesting the
affidavit, if true, would be sufficient to support the
relief, without regard to whether
relief authorized under Section 153.433. Id. A
the appointment of a managing
trial court abuses its discretion if it grants
conservator is an issue in the suit.
grandparents access to their grandchildren without
meeting this standard. 26
(c) In a suit described by
Subsection (a), the person filing the
It is important to note that a biological or
suit must execute and attach an
adoptive grandparent may not request possession
affidavit on knowledge or belief
of or access to a grandchild if:
that contains, along with supporting
facts, the allegation that denial of
(1) each of the biological
possession of or access to the child
parents of the grandchild has:
by the petitioner would
(A) died;
significantly impair the child's
(B) had the person’s
physical health or emotional well-
parental rights terminated; or
being. The court shall deny the
(C) executed an affidavit
relief sought and dismiss the suit
or waiver of interest in child or an
unless the court determines that the
affidavit of relinquishment of
facts stated in the affidavit, if true,
parental rights under Chapter 161
would be sufficient to support the
and the affidavit designates an
24 25
In re M.J.G., 248 S.W.3d 753, 761 (Tex.App.—Fort In re Derzaph, 219 S.W.3d 327, 331 (Tex. 2007).
26
Worth, 2008). Derzaph, 219 S.W.3d at 333; In re J.M.T., 280 S.W.3d
490, 493 (Tex.App.—Eastland 2009, no pet.).
5
authorized agency, licensed child- (2) both parents, the surviving parent, or
placing agency, or person other the managing conservator or custodian
than the child’s stepparent as the either filed the petition or consented to
managing conservator for the child’ the suit.
and
2. Possessory Conservatorship
(2) the grandchild has been An adult sibling may obtain possessory
adopted, or is the subject of a conservatorship by intervening in a pending suit:
pending suit for adoption, by a 102.004(b): An original suit requesting
person other than the child’s possessory conservatorship may not be
stepparent. filed by a grandparent or other person.
Tex.Fam.Code §153.434. However, the court may grant a
B. Siblings grandparent or other person deemed by the
court to have had substantial past contact
1. Managing Conservatorship
with the child leave to intervene in a
An adult sibling has standing to seek
pending suit filed by a person authorized to
conservatorship if they can meet one of the
do so under this subchapter if there is
general standing requirements in Chapter 102. The
satisfactory proof to the court that
general standing terms most likely to apply to a
appointment of a parent as a sole managing
sibling are:
conservator or both parents as joint
102.003(a)(9): a person, other than a foster
managing conservators would significantly
parent, who has had actual care, control,
impair the child's physical health or
and possession of the child for at least six
emotional development.
months ending not more than 90 days
preceding the date of the filing of the 3. Access
petition; An adult sibling has standing to file a suit
102.003(a)(11): a person with whom the child seeking access to siblings who have been
and the child's guardian, managing separated through DFPS actions:
conservator, or parent have resided for at 102.0045: (a) The sibling of a child may file
least six months ending not more than 90 an original suit requesting access to the
days preceding the date of the filing of the child as provided by Section 153.551 if the
petition if the child's guardian, managing sibling is at least 18 years of age.
conservator, or parent is deceased at the (b) Access to a child by a sibling of the child is
time of the filing of the petition; or governed by the standards established by
102.003(a)(13): a person who is a relative of Section 153.551.
the child within the third degree by 153.551: (a) The sibling of a child who is
consanguinity, as determined by Chapter separated from the child because of an
573, Government Code, if the child's action taken by the Department of Family
parents are deceased at the time of the and Protective Services may request access
filing of the petition. to the child by filing:
102.004(a): In addition to the general standing (1) an original suit; or
to file suit provided by Section 102.003, a (2) a suit for modification as provided by
grandparent, or another relative of the Chapter 156.
child related within the third degree by (b) A sibling described by Subsection (a) may
consanguinity, may file an original suit request access to the child in a suit filed for
requesting managing conservatorship if the sole purpose of requesting the relief,
there is satisfactory proof to the court that: without regard to whether the appointment
(1) the order requested is necessary of a managing conservator is an issue in
because the child's present the suit.
circumstances would significantly (c) The court shall order reasonable access to
impair the child's physical health or the child by the child's sibling described by
emotional development; or Subsection (a) if the court finds that access
is in the best interest of the child.
6
156.002(c): The sibling of a child who is (2) the number of generations between the
separated from the child because of the relative and the nearest common
actions of the Department of Family and ancestor.
Protective Services may file a suit for (c) An individual's relatives within the third
modification requesting access to the child degree by consanguinity are the
in the court with continuing, exclusive individual's:
jurisdiction. (1) parent or child (relatives in the first
Although only the first section contains an explicit degree);
requirement that the sibling be at least 18 years of (2) brother, sister, grandparent, or
age, one court has held that minor siblings do not grandchild (relatives in the second
have any standing to seek access: “Although degree); and
section 153.551 establishes a statutory right to (3) great-grandparent, great-grandchild,
seek sibling access, section 102.0045 requires the aunt who is a sister of a parent of the
sibling requesting access to be at least 18 years of individual, uncle who is a brother of a
age. Since [the minor child] is not at least eighteen parent of the individual, nephew who is
years of age, she does not have standing to seek a child of a brother or sister of the
sibling access.” 27 individual, or niece who is a child of a
brother or sister of the individual
C. Aunts, Uncles, and Other Relatives within
(relatives in the third degree).
the Third Degree of Consanguinity
Note: A cousin is not a relative within the third
1. Definition of Consanguinity degree of consanguinity. 28 A great-aunt or great-
Tex. Gov. Code § 573.022. Determination of uncle is not a relative within the third degree of
Consanguinity: consanguinity. 29
(a) Two individuals are related to each other Section 102.004 requires the relationship to
by consanguinity if: be within three degrees of consanguinity, not three
(1) one is a descendant of the other; or degrees of affinity. 30 While often used together,
(2) they share a common ancestor. consanguinity and affinity are distinct concepts
(b) An adopted child is considered to be a with different definitions. 31 Courts presume the
child of the adoptive parent for this Texas Legislature was familiar with the definitions
purpose. and chose to permit petitions filed by individuals
Tex. Gov. Code § 573.023. Computation of related within three degrees of consanguinity, but
Degree of Consanguinity: not within three degrees of affinity. 32 Therefore, a
(a) The degree of relationship by person who is related by marriage but who does
consanguinity between an individual and not share a common ancestor with the child cannot
the individual's descendant is determined qualify for standing under the sections of the
by the number of generations that separate Family Code requiring consanguinity.
them. A parent and child are related in the
first degree, a grandparent and grandchild 2. Both Parents Deceased
If both of a child’s parents are deceased, then a
in the second degree, a great-grandparent
relative within the third degree of consanguinity
and great-grandchild in the third degree
can have standing under the following sections:
and so on.
102.003(a)(13): a person who is a relative of
(b) If an individual and the individual's relative
the child within the third degree by
are related by consanguinity, but neither is
consanguinity, as determined by Chapter
descended from the other, the degree of
573, Government Code, if the child's
relationship is determined by adding:
(1) the number of generations between the
individual and the nearest common 28
Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App. 2002).
ancestor of the individual and the 29
In re N.L.D., No. 06-10-00132-CV (Tex.App.—Texarkana
individual's relative; and 2011).
30
In re A.M.S., 277 S.W.3d 92, 98 (Tex.App.--Texarkana
2009, no pet.).
27 31
In re S.L.M., No. 4-07-00566-CV (Tex.App.—San Id.
32
Antonio June 18, 2008) (memo op.). Id.
7
parents are deceased at the time of the he or she has had substantial past contact with a
filing of the petition. child:
153.431: If both of the parents of a child are 102.004(b): An original suit requesting
deceased, the court may consider possessory conservatorship may not be
appointment of a parent, sister, or brother filed by a grandparent or other person.
of a deceased parent as a managing However, the court may grant a
conservator of the child, but that grandparent or other person deemed by the
consideration does not alter or diminish the court to have had substantial past contact
discretionary power of the court. with the child leave to intervene in a
pending suit filed by a person authorized to
3. Living Parent(s)
do so under this subchapter if there is
If a child has a living parent or parents, a
satisfactory proof to the court that
relative may be able to have standing, if they can
appointment of a parent as a sole managing
show that the parent(s) consented or that the
conservator or both parents as joint
child’s circumstances are harmful:
managing conservators would significantly
102.004(a): In addition to the general standing
impair the child's physical health or
to file suit provided by Section 102.003, a
emotional development.
grandparent, or another relative of the
The Chavez 36 case discusses this relaxed standing
child related within the third degree by
requirement: Generally, an intervenor must show
consanguinity, may file an original suit
standing to maintain a suit in his own right in
requesting managing conservatorship if
order to intervene. 37 This showing requires that
there is satisfactory proof to the court that:
the intervenor have some present justiciable
(1) the order requested is necessary
interest in the subject matter of the suit.38
because the child's present
However, Section 102.004(b) of the Family Code
circumstances would significantly
specifically provides that grandparents who have
impair the child's physical health or
substantial past contact with the child may be
emotional development; or
granted leave to intervene in a SAPCR. Thus, a
(2) both parents, the surviving parent, or
grandparent need not have standing sufficient to
the managing conservator or custodian
institute a SAPCR in their own right in order to
either filed the petition or consented to
intervene in a pending SAPCR. 39 This relaxed
the suit.
standing rule promotes the overriding policy in all
For standing, there is no requirement that the
SAPCR suits, that of protecting the best interest of
relative prove an immediate danger. 33 That
the child.
requirement does not appear in the current statute,
and it is assumed that the Legislature excluded the D. Stepparents
immediacy requirement for a purpose. 34 The Vogel
1. Deceased Parent
court found that the father’s long-term alcoholism A stepparent who has resided with the child
and recent drinking, as well as testimony that it can seek standing upon the death of the child’s
would be harmful for the child to live with the natural parent:
father, were sufficient for the trial court to find 102.003(11): a person with whom the child
that the child’s present circumstances, if he were and the child's guardian, managing
to live with the father, would significantly impair conservator, or parent have resided for at
his physical health or emotional development. 35 least six months ending not more than 90
4. Possessory Conservatorship days preceding the date of the filing of the
A relative within the third degree of petition if the child's guardian, managing
consanguinity may file suit seeking possessory
conservatorship by intervening in a pending suit, if 36
Chavez v. Chavez, 148 S.W.3d 449, 457 (Tex.App.--El
Paso 2004, no pet.).
37
Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex.App.-
33
In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston El Paso 1995, orig. proceeding); McCord v. Watts, 777
[14th Dist.] 2008, orig. proceeding). S.W.2d 809, 812 (Tex.App.-Austin 1989, no writ).
34 38
Id. Segovia-Slape, 893 S.W.2d at 696.
35 39
Id. See Segovia-Slape, 893 S.W.2d at 696.
8
conservator, or parent is deceased at the relinquish care of the child in order for the other
time of the filing of the petition. person to have standing, and described facts more
Subsection 102.003(a)(11) was designed as a similar to the previous T.W.E. case. 47
"stepparent" statute, affording standing to, among There is a line of cases that holds that it is
others, a stepparent who helps raise a child when very difficult for a person to get standing under
the stepparent's spouse—one of the child's this provision if the child’s parent(s) were also
parents— dies. 40 A traditional application would living with the children. The M.J.G. case held that
indicate that upon the death of the mother, as a “Even though the children were living in the
sole managing conservator of the child, her current [grandparents’] home and the [grandparents]
husband would have standing. 41 performed day-to-day caretaking duties for the
Note, however, that the statutory language is children, the children's parents were also living
not limited merely to stepparents; literally it can with the children in the home, and there was no
also include an unmarried cohabitant or even an evidence that [the parents] did not also care for the
adult sibling of the child of a deceased parent. 42 children or that [the parents] had abdicated their
parental duties and responsibilities to the
2. Living Parents
grandparents.” 48 The court in that case found that
A stepparent who has resided with the child
the grandparents failed to show six months actual
for six months has standing to bring suit:
care, control, and possession sufficient to establish
102.003(a)(9): a person, other than a foster
standing.
parent, who has had actual care, control,
There is no bright line rule in the cases
and possession of the child for at least six
showing exactly how much the biological parent
months ending not more than 90 days
must have relinquished control in order for the
preceding the date of the filing of the
other resident of the household to have standing to
petition.
seek conservatorship. However, courts are looking
Although the stepparent would not have to
for some actual relinquishment of caregiving
overcome the parental presumption to gain
duties by the biological parent. It is clear that in
standing, in order to prevail in an original suit, the
order to prevail on the case, the non-parent would
stepparent must overcome the parental
have to overcome the parental presumption, but it
presumption. For example, even though a husband
is unclear how much courts are expecting with
finds out that he is not the biological father of the
regards to merely obtaining standing.
child, he has standing to sue for appointment as
managing conservator because he had actual E. Non-relative
possession and control of the child for six months The provisions governing standing for a non-
immediately before the suit was filed. 43 Because relative are found in §102.003(a) or §102.004(b).
of the parental presumption, however, a stepfather
or live-in boyfriend of six months does not litigate 102.003(a): An original suit may be filed at
custody against the mother on equal terms. 44 any time by:
The statute does not require that the person …….
asserting standing demonstrate he had exclusive (2) the child through a representative
control of the child. 45 However, the person must authorized by the court;
have some legal right of control over the child or (3) a custodian or person having the right of
authority to make decisions on behalf of the visitation with or access to the child appointed
child. 46 The dissent disagreed with the holding by an order of a court of another state or
that the biological parent must somehow country;
(4) a guardian of the person or of the estate of
40
Id. at 358. the child;
41
Id. (5) a governmental entity;
42
Id. at 356 (6) an authorized agency;
43
T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex.App.—San
(7) a licensed child placing agency;
Antonio 1992, no writ).
44
Id. at 809.
45 47
In re K.K.C., 292 S.W.3d 788, 793 (Tex.App.--Beaumont Id. at 794-95.
48
2009, orig. proceeding). In re M.J.G., 248 S.W.3d 753, 758-59 (Tex.App.--Fort
46
See Id. Worth 2008, no pet.).
9
(8) a man alleging himself to be the father of conservator or both parents as joint
a child filing in accordance with Chapter 160, managing conservators would significantly
subject to the limitations of that chapter, but impair the child's physical health or
not otherwise; emotional development.
(9) a person, other than a foster parent, who
has had actual care, control, and possession of For a non-relative to meet this burden,
the child for at least six months ending not such individual must show that he or she has had
more than 90 days preceding the date of the substantial past contact with the child. However,
filing of the petition; the term “substantial past contact” is not defined
(10) a person designated as the managing by statute or case law.
conservator in a revoked or unrevoked In the Interest of H.B.N.S., a Child,
affidavit of relinquishment under Chapter 161 involved the termination of parental rights and
or to whom consent to adoption has been adoption proceeding where two unrelated couples
given in writing under Chapter 162; were attempting to adopt a child. The court held
(11) a person with whom the child and the that the parents of the child’s babysitter had
child's guardian, managing conservator, or standing to intervene based upon their substantial
parent have resided for at least six months past contacts with the child. 49 In the case, the
ending not more than 90 days preceding the birth mother allowed the child to go home from
date of the filing of the petition if the child's the hospital after birth with the Bolton family.
guardian, managing conservator, or parent is While they did not intend to adopt her, the Boltons
deceased at the time of the filing of the took her home and cared for her. During that year,
petition; they hired a babysitter to care for the child and the
(12) a person who is the foster parent of a babysitter would take the child to her parent’s
child placed by the Department of Family and home. Two years later, the birth mother executed
Protective Services in the person's home for at an Affidavit of Relinquishment of Parental Rights
least 12 months ending not more than 90 days and designated the Boltons as managing
preceding the date of the filing of the petition; conservators of the child. The Boltons then file a
(13) a person who is a relative of the child termination and adoption suit. The babysitter’s
within the third degree by consanguinity, as parents, the Shultzes, petitioned for intervention
determined by Chapter 573, Government and were ultimately granted standing after
Code, if the child's parents are deceased at the showing that they provided ongoing care for
time of the filing of the petition; or extensive periods of time; took the child on family
(14) a person who has been named as a vacations; had the child participate in family
prospective adoptive parent of a child by a celebrations and holidays; provided the child with
pregnant woman or the parent of the child, in a room in their home and lake house; and were the
a verified written statement to confer standing ones contacted by the school and had authority to
executed under Section 102.0035, regardless pick up the child from school. 50 Ultimately, the
of whether the child has been born. appellate court terminated the birth parents’ rights
and appointed the Shultzes as the child’s sole
Section 102.004(b) allows non-parents to managing conservator and the Boltons as the
intervene in a pending SAPCR. possessory conservator based upon their extensive
102.004(b): An original suit requesting involvement in the child’s life.
possessory conservatorship may not be The case, In the Interest of N.B.B. and
filed by a grandparent or other person. J.B.B. extending standing to a neighbor of a parent
However, the court may grant a under §102.004(b). 51 The case involved an
grandparent or other person deemed by the unmarried mother and father who had two
court to have had substantial past contact children, one with Downs Syndrome. The parents
with the child leave to intervene in a
49
pending suit filed by a person authorized to 2007 Tex.App. LEXIS 5541 (Tex.App.—Houston [14th
do so under this subchapter if there is Dist.] 2007, pet. denied, Nov. 9, 2007).
50
Id.
satisfactory proof to the court that 51
2007 Tex.App. LEXIS 8639 (Tex.App. San Antonio Oct.
appointment of a parent as a sole managing 31, 2007).
10
separated and the mother moved away from the the child. The standing to file suit under this
father and placed the child with Downs Syndrome subsection applies only to the adoption of a child
in a residential facility and let the other child live who is eligible to be adopted.
with a neighbor when she found out that she was
terminally ill. Upon the mother’s death, the father An original suit may be filed at any time by a
came to Texas to take possession of the children, person who is the foster parent of a child placed
but the neighbor refused to surrender the child in by the Department of Protective and Regulatory
her possession. The father brought a SAPCR Services in the person’s home for at least 12
action and the neighbor filed a counterpetition. months ending not more than 90 days preceding
Upon review, the appellate court confirmed the the date of the filing of the petition. Tex. Fam.
trial court and appointed the father and the Code § 102.003(a)(12). In computing the time
neighbor joint managing conservators of the child necessary for standing under subsection (a)(12),
and granted the neighbor the exclusive right to “the court may not require that the time be
designate the residence of the children. It is continuous and uninterrupted but shall consider
interesting to note that the court found that besides the child’s principal residence during the relevant
the neighbor having had substantial past contact time preceding the date of commencement of the
with the children, that appointing the father as a suit.” Tex. Fam. Code § 102.003(b). The elements
sole managing conservator would significantly of residency for this section are: (1) a fixed place
impair the children’s health and emotional of abode within the possession of the party; (2)
development. occupied or intended to be occupied consistently
over a substantial period of time; (3) which is
F. Foster parents
permanent rather than temporary. 52
Foster parents may obtain standing through
Notwithstanding the time requirements of
Texas Family Code §102.003(a)(12), §102.003(c)
Subsection (a)(12), a person who is the foster
or §102.004(b). An original suit may be filed as
parent of a child may file a suit to adopt a child for
follows:
whom the person is providing foster care at any
1. Family Code 102.003(a)(12) time after the person has been approved to adopt
A person who is the foster parent of a child the child. The standing to file suit under this
placed by the Department of Family and subsection applies only to the adoption of a child
Protective Services in the person's home for at who is eligible to be adopted. Tex. Fam. Code §
least 12 months ending not more than 90 days 102.003(c). The filing of a petition to terminate
preceding the date of the filing of the petition. parental rights by foster parents who have
2. Family Code 102.004(b) standing under Section 102.003(a)(12) grants a
An original suit requesting possessory trial court jurisdiction to terminate those rights
conservatorship may not be filed by a grandparent even after the trial court loses jurisdiction over the
or other person. However, the court may grant a petition to terminate filed by the Texas
grandparent or other person deemed by the court Department of Family and Protective Services. 53
to have had substantial past contact with the child However, if the foster parents’ plea in intervention
leave to intervene in a pending suit filed by a is contingent on upon, and not independent of, the
person authorized to do so under this subchapter if allegations of the Texas Department of Family and
there is satisfactory proof to the court that Protective Services, and the foster parents have no
appointment of a parent as a sole managing pending claims for affirmative relief, the foster
conservator or both parents as joint managing parents lose standing if the Texas Department of
conservators would significantly impair the child's Family and Protective Services nonsuits its
physical health or emotional development. claims. 54
3. Family Code 102.003(c)
Notwithstanding the time requirements of 52
Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El
Subsection (a)(12), a person who is the foster Paso 2002, no pet.).
53
parent of a child may file a suit to adopt a child for In re C.V.G., 112 S.W.3d 180, 184 (Tex. App.—Houston
whom the person is providing foster care at any [1st Dist.] 2003, orig. proceeding).
54
In re Roxsane R., 249 S.W.3d 764, 773-74 (Tex. App.—
time after the person has been approved to adopt
Fort Worth 2008, orig. proceeding).
11
G. Prospective Adoptive Parent Standing revocation of the statement must be in writing and
must be sent by certified mail, return receipt
1. Family Code 102.003(a)(14)
requested, to the prospective adoptive parent. Tex.
An original suit may be filed at any time by a
Fam. Code §102.0035(f). On filing with the court
person who has been named as a prospective
proof of the delivery of the revocation of a
adoptive parent of a child by a pregnant woman or
statement to confer standing under Subsection (f),
the parent of the child, in a verified written
the court shall dismiss any suit affecting the
statement to confer standing executed under
parent-child relationship filed by the prospective
Section 102.0035, regardless of whether the child
adoptive parent named in the statement. Tex. Fam.
has been born. Tex. Fam. Code §102.003(a)(14).
Code § 102.0035(g).
2. Family Code 102.0035
A pregnant woman or a parent of a child may 3. In the Interest of S.S.G.
In the Interest of S.S.G. considered issues
execute a statement to confer standing to a
involving prospective adoptive parents that took
prospective adoptive parent as provided by
possession of the child at issue soon after its
Section 102.0035 to assert standing under Section
birth. 56 The prospective adoptive parents filed a
102.003(a)(14). A statement to confer standing
SAPCR seeking termination of the parent-child
under Section 102.0035 may not be executed in a
relationship and adoption of the child. Id. The
suit brought by a governmental entity under
trial court terminated the parental rights and
Chapter 262 or 263. Tex. Fam. Code §
appointed the prospective adoptive parents as
102.0035(a). The statement may not be used for
managing conservators. The Court of Appeals
any purpose other than to confer standing in a
reversed and denied relief to the appellants and
proceeding for adoption or to terminate the parent-
appellants filed a petition for review with the
child relationship. Tex. Fam. Code §102.0035(c).
Texas Supreme Court which was denied.
A statement to confer standing is not required
Appellants, the prospective adoptive parents, had
in a suit brought by a person who has standing to
possession of the child during the entire period.
file a suit affecting the parent-child relationship
Following the denial by the Supreme Court,
under Sections 102.003(a)(1)-(13) or any other
appellants filed a new SAPCR under
law under which the person has standing to file a
§102.003(a)(9), based on the duration of time the
suit. Tex. Fam. Code § 102.0035(e). For a
child had resided with the parties, thereby
statement to confer standing to be effective, a
affording appellants standing.
parent-child relationship must exist and may be as
The trial court in the second SAPCR pleading
follows. A father-child relationship is established
noted an exception to §102.003(a)(9), which
between a man and a child by an unrebutted
provides that “if possession is maintained in
presumption of paternity; an unrevoked and
violation of a valid court order, that possession
unchallenged acknowledgment of paternity; an
does not confer standing to bring suit affecting the
adjudication of paternity; the man’s adoption of
parent-child relationship.” Id. The Court held that
the child; or his consent to his wife’s use of
the prospective adoptive parent’s continued
assisted reproduction. Tex. Fam. Code §
possession was not in violation of a court order
160.201(b). An alleged father is a man who
due to the fact that neither the trial court nor the
alleges himself to be, or is alleged to be, the
Court of Appeals entered an order requiring
genetic father or a possible genetic father of the
appellants to return the child to the biological
child, but whose paternity has not been
parents, and therefore, because they had actual
determined. Tex. Fam. Code § 101.0015(a). A
care, custody and possession of the child for six
statement to confer standing executed by a man as
months not ending more than ninety days prior to
an alleged father does not confer standing. 55 A
the filing of the petition, appellants had standing
person who executes a statement to confer
to file the second suit. Id.
standing may revoke the statement at any time
before the person executes an affidavit for
voluntary relinquishment of parental rights. The
55 56
In re Mata, 212 S.W.3d 597, 608 (Tex. App.—Austin 208 S.W.3d 1, 2006 Tex.App. LEXIS 1544
2006, orig. proceeding). (Tex.App.Amarillo 2006).
12
H. Same Sex couples the child’s school record without T.S.’s
agreement. The following month K.V. filed suit
1. Family Code 102.003(a)(9)
seeking to be appointed joint managing
Same sex partners most frequently utilize
conservator or the child or in the alternative to
§102.003(a)(9) to attempt to acquire standing.
adopt the child. Since K.V. was not the biological
The section states that to establish “actual care,
parent of the child, she asserted standing to sue for
control, and possession” as required by section
conservatorship under section 102.003(a)(9) as a
102.003(a)(9), the party must demonstrate (i) more
person who had “actual care, control, and
than temporary or occasional possession, though it
possession of the child for at least six months
need not by exclusive, and (ii) more than the
ending not more than 90 days preceding the date
control “implicit in having care and possession of
of the filing of the petition.” Tex. Fam. Code Ann
the child.” 57 To establish the six month
§102.003(a)(9).
requirement of “actual care, control, and
K.V. appealed the trial court’s decision
possession of the child” as required by section
that she lacked standing to sue for
102.003(a)(9), some cases say that the party must
conservatorship, maintaining that she satisfied the
demonstrate the child “principally resided” with
standing requirement by virtue of her weekly
him, though the residency of the child with the
overnight possessions of the child and possessions
party need not be continuous and uninterrupted.58
on “some holidays”, alternate weekends, and
However, visitation in accordance with the
alternate Sundays. Noting that the court in Doncer
Standard Possession Order found in section
compared the term “principal residence” as used
153.312 of the family code may satisfy the
in the determination of the six month possession
standing requirement. 59 Whether a party satisfies
requirement in §102.003(a)(9) with the term
the standing requirement under section
“primary residence” as defined in a joint
102.003(a)(9) is necessarily fact specific and
managing conservatorship in connection with
determined on a case by case basis. 60 Several
whom the child lives once conservators have been
cases, as discussed below, have considered
appointed, the Appellate Court concluded the term
standing issues for same sex couples.
“principal residence” means a “fixed place of
a) In re M.K.S.-V.
abode, occupied consistently over a substantial
In re M.K.S.-V., involved dismissal of a
period of time, which is permanent rather than
partner’s (K.V.) suit for conservatorship or
temporary.” K. V. argued that her home was a
adoption of a child born in 2004 to the ex-partner
principal residence of the child because it was “a
(T.S.) who became pregnant with the child
fixed place of abode” that the child occupied
through artificial insemination by a sperm donor. 61
consistently and in a permanent fashion, in
The partners co-parented the child for over a year
accordance with the possession agreement. The
when the relationship ended and T.S. moved out
Appellate Court held that an intent that the child
with the child. The partners set up an agreed
occupy K.V.’s home consistently over a
written schedule for the child to visit K.V.
substantial period of time alone established only
overnight once a week, alternate Sunday
the six month requirement of section
afternoons, alternate weekends beginning on
102.003(a)(9), and to establish standing, K.V. also
Friday afternoons during the school year and
had to establish that she exercised more than the
Thursday afternoons in the summer and certain
control implicit in having care and possession of
holidays. The schedule began in August of 2005
the child.
and continued until April of 2007 when T.S.
The Appellate Court placed emphasis on
discontinued the visits because K.V. had accessed
the fact that even though the “possession
57 agreement” shared characteristics of a standard
See K.K.C., 292 S.W.3d 788 (Tex.App. -Beaumont 2009,
orig. proceeding); In re M.J.G., 248 S.W.3d 753, 758-59
possession order, nothing in the record showed
(Tex.App.-Fort Worth 2008, no pet.). that it was accompanied by the rights a parent
58
Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.- El conservator enjoys “at all times,” or that T.S.
Paso 2002, no pet.); See Tex. Fam. Code Ann. §102.003(b). relinquished or shared any of her rights as a
59
See Doncer, 81 S.W.3d at 362. parent. The Appellate Court thus rejected K.V.’s
60
In re M.P.B., 257 S.W.3d 804, 809 (Tex.App. - Dallas
2008, no pet.).
argument that she established standing to sue for
61
301 S.W.3d 460 (Tex.App.—Dallas 2009).
13
conservatorship by virtue of her possession Id. Haley and Smith separated in February 2008,
agreement. and Smith filed a motion to vacate the agreed
The Dallas Appellate Court, on December order, and Haley filed a petition to modify the
1, 2009, withdrew the August opinion, vacated the order. Id. The trial court denied Smith’s motion to
judgment of that date, and issued a new opinion vacate and she filed for mandamus arguing that
finding that the trial court erred in determining the 2002 agreed order naming Haley as joint
that K.V. did not meet the standing requirement. 62 managing conservator was void because Haley
In finding that K.V. did establish the six month lacked standing. Id. The Appellate Court
period of actual care, custody, and control conditionally granted Smith’s petition for writ of
requisite to establish her standing to file an mandamus and directed the trial court to vacate its
original SAPCR, the Dallas Court of Appeals orders. In doing so, the appellate court noted that
focused on the fact that the child had her own at the temporary hearing in 2008, Haley
room in K.V.’s house where the child kept toys, acknowledged that she did not have standing at the
movies, a television and an aquarium. Id. K.V. had time the original petition was filed pursuant to
modified her house by building a wrap around section 102.003(a)(9), in that she was not “a
deck with gates to create a safe environment for person, other than a foster parent, who has had
the child, would pick up the child from school on actual care, control, and possession of the child for
occasions when the child was sick and then at least six months ending not more than 90 days
purchase and administer medication. Id. K.V. was preceding the date of the filing of the original
listed as a parent on the child’s school records, petition.” Id. at 466. When Haley and Smith filed
attended school activities and the teachers were the joint petition, the twins were four months old
aware that K.V. picked up the child during K.V.’s so the six month requirement had not been met. Id.
periods of possession. Id. Witnesses testified that The Appellate Court also rejected Haley’s
T.S. had referred to K.V. as the child’s mother and argument that because she and Smith had a written
treated K.V. as a parent. Id. K.V. established a agreement concerning conservatorship
college fund for the child and after the relationship incorporated into the agreed order, that Smith’s
with T.S. ended, the couple still attended church standing was enough to confer jurisdiction. Haley
with the child as a family unit. Id. The Appellate relied on section 153.007(b) of the Texas Family
Court stated that the record did not suggest that Code, providing that the court “shall render an
the pattern of possession and care giving was order in accordance with the parenting plan.”
intended to be a temporary arrangement. Id. “To Regardless, the Appellate Court stated that section
the contrary, the possession agreement and the 153.007(b) presupposes standing, and Haley had
parties’ actions evidenced intent that the child not established standing under the Family Code’s
occupy K.V.’s home consistently over a general standing statute or under a more specific
substantial period of time.” Id. Family Code statute. Id. at 466.
b) In re Smith Haley then filed an original petition in
In In re Smith, Charlena Smith gave birth 2008 seeking to be named as sole managing
to twins conceived by artificial insemination from conservator under Chapter 153 of the Texas
an anonymous donor, and when the twins were Family Code arguing standing to do so pursuant to
four months old, Smith and her same sex partner, §102.003(a)(9). 64 The trial court dismissed the
Sheila Haley, filed a joint SAPCR petition.63 In petition for lack of standing and made written
October 2002, when the twins were five months findings of fact and conclusions of law as set forth
old, the trial court signed an Agreed SAPCR as follows:
Order appointing Smith and Haley as joint “1. There is no evidence that,
managing conservators and gave them equal during the relevant time period, the parent,
possession of the children at all times and stating Ms. Smith, totally abdicated her parental
“that no stated provisions for possession and responsibilities over the children to the non
access are necessary in light of the fact that the parent, Ms. Haley.
parties cohabited in the same primary residence.”
62 64
In re M.K.S.-V., 05-08-00568-CV (Tex.App.-Dallas 2009). In the Interest of C.T.H.S. and C.R.H.S., 311 S.W.3d 204
63
262 S.W.3d 463 (Tex.App.-Beaumont 2008) (Tex.Civ.App.—Beaumont 2010).
14
2. There is no evidence that, during context with the responsibilities and liberty
the relevant time period, the parent Ms. interests of the parent. Id. In giving effect to the
Smith did not exercise some care for, some words “actual care,” the appellate court considered
control over or some supervision over the §102.003(a)(11) which provides standing for a
children at the same time that the non person with whom the child has resided for six
parent Ms. Haley exercised some care for, months if the parent is deceased at the time suit is
some control over and some supervision filed. Id. The appellate court theorized that a
over the children. person living with a parent and a child may care
3. There is no evidence that, during for the child over a period of time but would not
the relevant time period, the non parent acquire standing by providing the care normally
Ms. Haley exercised exclusive care for, associated with residing in the same household. Id.
control over and supervision over the at 209.
children to the exclusion of the parent Ms. The appellate court compared the case to
Smith. In re M.J.G., 65 where the Fort Worth court of
4. A parent must totally abdicate appeals denied standing to grandparents holding
their parental responsibilities to another that although the children lived with the
person during the relevant time period grandparents since birth and the grandparents
before that other person can acquire performed day to day care taking duties, the
standing to file an original SAPCR with parents also lived with the grandparents and had
respect to that parent’s child. not “abdicated their parental duties and
5. A parent’s allowing of a non responsibilities to the grandparents.” Id. at 209,
parent to have some care for, some control citing In re M.J.G.
over and some supervision over the Haley argued the M.J.G. decision
parent’s child during the relevant time incorrectly construed §102.003(a)(9) and that a
period is insufficient for the non parent to parent often lives with others and that the best
acquire standing to file an original SAPCR interest of the children should be the primary
with respect to that child. consideration. Id. The appellate court disagreed
6. If a parent, to any extent with Haley and stated that “standing does not turn
whatsoever, retains or exercises any care on whether a trial court agrees or disagrees with a
for, any control over or any supervision parent’s decision concerning the best interest of
over their child during the relevant time her children, or a parent’s decision regarding who
period, then a non-parent cannot as a may associate with her children.” Id. at 209.
matter of law acquire standing to file an Further, that the inquiry of the court for a non-
original SAPCR with respect to that child. parent claiming standing pursuant to the “actual
7. During the relevant time period, care” requirement of §102.003(a)(9) focuses on
a non-parent must exercise exclusive care “whether the parent is adequately caring for her
for, control over and supervision over a children.” Id., citing Tex. Fam. Code
child (not necessarily continuous for the §102.003(a)(9). The appellate court concluded that
entire time period, but during the relevant although Haley lived with the children, Smith also
time period) to the exclusion of the child’s lived in the home with the children and had not
parent in order to acquire standing to file “abdicated her parental duties and responsibilities”
an original SAPCR with respect to that nor did the record show that Smith failed to
child.” Id. adequately care for her children. Id. at 209-210.
Haley appealed the trial court’s dismissal As such, the court affirmed the trial court’s ruling
of her petition for lack of standing. Id. On appeal, that Haley failed to meet her burden and did not
the court in considering if she had standing have standing to file suit. Id.
focused on the specific statutory words “actual
care, control, and possession” in §102.003(a)(9) of
the Texas Family Code and stated that they would
give each “word effect if it is reasonable and
possible to do so.” Id at 208. The appellate court
stated that “actual care” must be interpreted in 65
248 S.W.3d 753 (Tex.App.-Fort Worth 2008, no pet.)
15
2. Same Sex Adoption order shall terminate all rights of the parent
The Texas Family Code does not preclude without further termination proceedings.
same sex adoption. Section 162.001 sets forth
who may adopt and who may be adopted: Additionally, §102.0035 allows a pregnant
woman or any parent of a child to sign a statement
162.001: (a) Subject to the requirements for to confer standing to a prospective adoptive parent
standing to sue in Chapter 102, an adult and allow that individual to bring a suit for
may petition to adopt a child who may be adoption or for termination and adoption under
adopted. §102.003(a)(14). Several cases have considered
the issue of standing in same sex adoptions.
(b) A child residing in this state may be In Goodson v. Castellanos, 66 Goodson
adopted if: traveled to Kazakstan to adopt a 3-year old child.
After returning, she and her same-sex partner,
(1) the parent-child relationship as to each Castellanos, adopted the child. A year later, when
living parent of the child has been the parents separated, Castellanos filed a SAPCR
terminated or a suit for termination is and after trial, the court appointed Castellanos as
joined with the suit for adoption; sole managing conservator. On appeal, Goodson
alleged that the Texas adoption was void because
(2) the parent whose rights have not been the court lacked subject matter jurisdiction over an
terminated is presently the spouse of the adoption of a child by two members of the same
petitioner and the proceeding is for a sex. She used various definitions of “parent” in
stepparent adoption; Texas Family Code § 101.024 and 101.025 and
also cited the Texas Health and Safety Code §
(3) the child is at least two years old, the 192.008(a) that says amended birth certificates
parent-child relationship has been “must be in the names of the adoptive parents, one
terminated with respect to one parent, the of whom must be a female . . . and the other of
person seeking the adoption has been a whom must be a male.” The court rejected these
managing conservator or has had actual arguments, saying that the court issuing the
care, possession, and control of the child adoption order is a court of general jurisdiction
for a period of six months preceding the that “may hear and determine any cause that is
adoption or is the child's former stepparent, cognizable by courts of law or equity and may
and the nonterminated parent consents to grant any relief that could be granted by either
the adoption; or courts of law or equity.” Id. at 747. The court also
pointed out that the Family Code “specifically
(4) the child is at least two years old, the authorizes district courts to issue adoption orders.
parent-child relationship has been Id. at 748. The court held that Goodson could not
terminated with respect to one parent, and collaterally attack the adoption decree. Id. at 749.
the person seeking the adoption is the Goodson also argued that the coparent
child's former stepparent and has been a adoption “violates the public interest of the state
managing conservator or has had actual of Texas that a child have at most one parent of
care, possession, and control of the child each sex.” Id at 750. The court again disagreed.
for a period of one year preceding the The Court held that if a parent wishes to maintain
adoption. that zone of privacy she cannot invite a third party
to function as a parent to her child and cannot cede
(c) If an affidavit of relinquishment of over to that party parental authority the exercise of
parental rights contains a consent for the which may create a profound bond with the child.
Department of Protective and Regulatory Id. at 752.
Services or a licensed child-placing agency In Hobbs v. Van Stavern, 67 Hobbs was the
to place the child for adoption and appoints child’s biological mother who conceived the child
the department or agency managing
conservator of the child, further consent by 66
214 S.W.3d 741 (Tex.App.—Austin 2007).
the parent is not required and the adoption 67
249 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2006).
16
through donor insemination and Van Stavern children. 71 If a parent has engaged in estate
adopted the child when the child was 3 years old. planning, and has designated a guardian for a
A year and a half later, the parents separated and child, then that person, upon being appointed
Van Stavern moved out of the home and filed a guardian, would have standing to file suit.
SAPCR. When Hobbs attacked the validity of the
J. Standing to Adjudicate Parentage
adoption, the court responded that the attack was Unless a voluntary acknowledgment of
untimely, and held that the validity of an adoption paternity has been executed by another man, a
order is not subject to attack after six months after prospective father has standing to seek
the date the order was signed. Id. Hobbs also adjudication of paternity.
claimed that appointing Van Stavern as a joint 102.003(a)(8): a man alleging himself to be
managing conservator of the child violated public the father of a child filing in accordance
policy because it was “tantamount to a with Chapter 160, subject to the limitations
proclamation validating same-sex relationships.” of that chapter, but not otherwise.
Id. Noting that Van Stavern had “little substantive 160.602(a): Subject to Subchapter D
argument and no citation to authority,” the court [voluntary acknowledgment of paternity]
found that, because the Code permitted Van and [the time limits in] Sections 160.607
Stavern to seek custody, it was “constrained to and 160.609 and except as provided by
follow the provisions of the Family Code as Subsection (b), a proceeding to adjudicate
enacted” and overruled the public policy parentage may be maintained by:
argument. Id. at 4-5. (1) the child;
I. Designated Guardian: Connecting the (2) the mother of the child;
Probate Code to the Family Code (3) a man whose paternity of the child is to
An attorney practicing primarily family law be adjudicated;
may not have a working familiarity with the (4) the support enforcement agency or
Probate Code, nonetheless, it can provide standing another government agency authorized
in certain instances. Under Tex. Fam. Code by other law;
102.003(a)(4), a guardian of the person or of the (5) an authorized adoption agency or
estate of the child has standing to file an original licensed child-placing agency;
suit. Such a person also has standing to file a (6) a representative authorized by law to
modification suit, pursuant to Tex. Fam. Code § act for an individual who would
156.002(b). otherwise be entitled to maintain a
In the Probate Code, the term “guardian” is proceeding but who is deceased, is
defined to mean a person who is appointed incapacitated, or is a minor;
guardian under Section 693 of the Probate Code, (7) a person related within the second
or a temporary or successor guardian. 68 The term degree by consanguinity to the mother
“guardian” in Section 102.003(a)(4) of the Family of the child, if the mother is deceased;
Code must be construed in accordance with the or
Probate Code’s definition of “guardian.” 69 (8) a person who is an intended parent.
Section 676 of the Probate Code allows the (b) After the date a child having no presumed,
surviving parent of a minor, by will or written acknowledged, or adjudicated father
declaration, to appoint any eligible person to be becomes an adult, a proceeding to
guardian of the person of the parent's minor adjudicate the parentage of the adult child
children after the death or incapacity of the may only be maintained by the adult child.
parent. 70 After the parent’s death or a finding of Prior to 2007, there was debate over whether a
incapacity, the court shall appoint the person sperm donor had standing to adjudicate parentage.
designated in the will or declaration to serve as In re Sullivan 72 held that where a mother and a
guardian of the person of the parent's minor donor had executed a co-parenting agreement, he
68
Tex. Prob. Code § 601(11).
69 71
In re A.D.P., 281 S.W.3d 541, 549 (Tex.App.—El Paso Tex. Prob. Code § 676(e).
72
2008, no pet.). In re Sullivan, 157 S.W.3d 911 (Tex.App.--Houston [14th
70
Tex. Prob. Code § 676(d). Dist.] 2005, orig. proceeding [mand. denied]).
17
had standing to bring a suit; while In re H.C.S.73 allegations were made fraudulently to confer
held that a donor did not have standing. In 2007, jurisdiction. 81 When reviewing a trial court's order
Tex. Fam. Code § 160.7031 was revised to clarify on a plea to the jurisdiction, an appellate court
the issue. may look to evidence outside of the pleadings:
Another interesting case held that, where a “[T]he issues raised by a dilatory plea are often
man seeking to be adjudicated the father has such that they cannot be resolved without hearing
standing as of the filing of the case, the court does evidence. And because a court must not act
not lose subject matter jurisdiction over the without determining that it has subject-matter
parentage action when the DNA test results jurisdiction to do so, it should hear evidence as
determine that he is not the father. 74 necessary to determine the issue before proceeding
with the case. But the proper function of a dilatory
IV. Challenging Standing plea does not authorize an inquiry so far into the
The Sullivan 75 case contains a discussion on substance of the claims presented that plaintiffs
the proper procedure for challenging standing: are required to put on their case simply to
Standing is a prerequisite to subject-matter establish jurisdiction….The court should, of
jurisdiction, which is essential to a court's power course, confine itself to the evidence relevant to
to decide a case. 76 A party may challenge the the jurisdictional issue.” 82
absence of subject-matter jurisdiction by a plea to
the jurisdiction and by other procedural vehicles.77
A plea to the jurisdiction is a dilatory plea, the
purpose of which is to defeat the alleged claims,
without regard to whether they have merit. 78 The
purpose of a dilatory plea is not to force a plaintiff
to preview its case on the merits, but to establish a
reason why the merits of its case should never be
reached. 79
Meeting the burden for standing is different
than meeting the burden to prevail on the case.
The Texas Supreme Court has emphasized that a
court should not decide standing issues based on
its views of the merits: “In deciding a plea to the
jurisdiction, a court may not weigh the claims'
merits but must consider only the plaintiffs'
pleadings and the evidence pertinent to the
jurisdictional inquiry. When we consider a trial
court's order on a plea to the jurisdiction, we
construe the pleadings in the plaintiff's favor and
look to the pleader's intent.” 80 A trial court accepts
the factual allegations in the petition as true,
unless the defendant pleads and proves the
73
In re H.C.S., 219 S.W.3d 33 (Tex.App.-San Antonio 2006,
no pet.).
74
In re K.I.A., 205 S.W.3d 14 (Tex.App.—Eastland 2006,
no pet.).
75
In re Sullivan, 157 S.W.3d 911, 914-15 (Tex.App.--
Houston [14th Dist.] 2005, orig. proceeding, [mand.
denied]).
76
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54
(Tex. 2000).
77
Id. at 554.
78 81
Id. Id. at 554; TAC Realty, Inc. v. City of Bryan, 126 S.W.3d
79
Id. 558, 561 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).
80 82
Id. at 554-55. Id. at 554-55.
18
V. Appendix A, Texas Family Code Standing Government Code, if the child's parents are
Provisions deceased at the time of the filing of the
petition; or
(14) a person who has been named as a
A. Chapter 102
prospective adoptive parent of a child by a
pregnant woman or the parent of the child,
Tex. Fam. Code § 102.003.
in a verified written statement to confer
GENERAL STANDING TO FILE SUIT.
standing executed under Section 102.0035,
(a) An original suit may be filed at any time by:
regardless of whether the child has been
(1) a parent of the child;
born.
(2) the child through a representative
(b) In computing the time necessary for standing
authorized by the court;
under Subsections (a)(9), (11), and (12), the
(3) a custodian or person having the right of
court may not require that the time be
visitation with or access to the child
continuous and uninterrupted but shall
appointed by an order of a court of another
consider the child's principal residence during
state or country;
the relevant time preceding the date of
(4) a guardian of the person or of the estate of
commencement of the suit.
the child;
(c) Notwithstanding the time requirements of
(5) a governmental entity;
Subsection (a)(12), a person who is the foster
(6) an authorized agency;
parent of a child may file a suit to adopt a
(7) a licensed child placing agency;
child for whom the person is providing foster
(8) a man alleging himself to be the father of a
care at any time after the person has been
child filing in accordance with Chapter
approved to adopt the child. The standing to
160, subject to the limitations of that
file suit under this subsection applies only to
chapter, but not otherwise;
the adoption of a child who is eligible to be
(9) a person, other than a foster parent, who
adopted.
has had actual care, control, and possession
of the child for at least six months ending
not more than 90 days preceding the date Tex. Fam. Code § 102.0035.
of the filing of the petition; STATEMENT TO CONFER STANDING.
(a) A pregnant woman or a parent of a child may
(10) a person designated as the managing
execute a statement to confer standing to a
conservator in a revoked or unrevoked
prospective adoptive parent as provided by this
affidavit of relinquishment under Chapter
section to assert standing under Section
161 or to whom consent to adoption has
102.003(a)(14). A statement to confer standing
been given in writing under Chapter 162;
under this section may not be executed in a
(11) a person with whom the child and the
suit brought by a governmental entity under
child's guardian, managing conservator, or
Chapter 262 or 263.
parent have resided for at least six months
(b) A statement to confer standing must contain:
ending not more than 90 days preceding
(1) the signature, name, age, and address of the
the date of the filing of the petition if the
person named as a prospective adoptive
child's guardian, managing conservator, or
parent;
parent is deceased at the time of the filing
(2) the signature, name, age, and address of the
of the petition;
pregnant woman or of the parent of the
(12) a person who is the foster parent of a
child who is consenting to the filing of a
child placed by the Department of Family
petition for adoption or to terminate the
and Protective Services in the person's
parent-child relationship as described by
home for at least 12 months ending not
Subsection (a);
more than 90 days preceding the date of
(3) the birth date of the child or the anticipated
the filing of the petition;
birth date if the child has not been born;
(13) a person who is a relative of the child
and
within the third degree by consanguinity,
(4) the name of the county in which the suit
as determined by Chapter 573,
will be filed.
19
(c) The statement to confer standing must be deemed by the court to have had substantial
attached to the petition in a suit affecting the past contact with the child leave to intervene in
parent-child relationship. The statement may a pending suit filed by a person authorized to
not be used for any purpose other than to do so under this subchapter if there is
confer standing in a proceeding for adoption or satisfactory proof to the court that appointment
to terminate the parent-child relationship. of a parent as a sole managing conservator or
(d) A statement to confer standing may be signed both parents as joint managing conservators
at any time during the pregnancy of the mother would significantly impair the child's physical
of the unborn child whose parental rights are health or emotional development.
to be terminated. (c) Possession of or access to a child by a
(e) A statement to confer standing is not required grandparent is governed by the standards
in a suit brought by a person who has standing established by Chapter 153.
to file a suit affecting the parent-child
relationship under Sections 102.003(a)(1)-(13) Tex. Fam. Code § 102.0045.
or any other law under which the person has STANDING FOR SIBLING.
standing to file a suit. (a) The sibling of a child may file an original suit
(f) A person who executes a statement to confer requesting access to the child as provided by
standing may revoke the statement at any time Section 153.551 if the sibling is at least 18
before the person executes an affidavit for years of age.
voluntary relinquishment of parental rights. (b) Access to a child by a sibling of the child is
The revocation of the statement must be in governed by the standards established by
writing and must be sent by certified mail, Section 153.551.
return receipt requested, to the prospective
adoptive parent. Tex. Fam. Code § 102.005.
(g) On filing with the court proof of the delivery STANDING TO REQUEST TERMINATION
of the revocation of a statement to confer AND ADOPTION.
standing under Subsection (f), the court shall An original suit requesting only an adoption or for
dismiss any suit affecting the parent-child termination of the parent-child relationship joined
relationship filed by the prospective adoptive with a petition for adoption may be filed by:
parent named in the statement. (1) a stepparent of the child;
(2) an adult who, as the result of a placement
Tex. Fam. Code § 102.004. for adoption, has had actual possession and
STANDING FOR GRANDPARENT OR control of the child at any time during the
OTHER PERSON. 30-day period preceding the filing of the
(a) In addition to the general standing to file suit petition;
provided by Section 102.003, a grandparent, or (3) an adult who has had actual possession and
another relative of the child related within the control of the child for not less than two
third degree by consanguinity, may file an months during the three-month period
original suit requesting managing preceding the filing of the petition;
conservatorship if there is satisfactory proof to (4) an adult who has adopted, or is the foster
the court that: parent of and has petitioned to adopt, a
(1) the order requested is necessary because sibling of the child; or
the child's present circumstances would (5) another adult whom the court determines to
significantly impair the child's physical have had substantial past contact with the
health or emotional development; or child sufficient to warrant standing to do
(2) both parents, the surviving parent, or the so.
managing conservator or custodian either
filed the petition or consented to the suit. Tex. Fam. Code § 102.006.
(b) An original suit requesting possessory LIMITATIONS ON STANDING.
conservatorship may not be filed by a (a) Except as provided by Subsections (b) and (c),
grandparent or other person. However, the if the parent-child relationship between the
court may grant a grandparent or other person child and every living parent of the child has
20
been terminated, an original suit may not be If both of the parents of a child are deceased, the
filed by: court may consider appointment of a parent, sister,
(1) a former parent whose parent-child or brother of a deceased parent as a managing
relationship with the child has been conservator of the child, but that consideration
terminated by court order; does not alter or diminish the discretionary power
(2) the father of the child; or of the court.
(3) a family member or relative by blood,
adoption, or marriage of either a former Tex. Fam. Code § 153.432.
parent whose parent-child relationship has SUIT FOR POSSESSION OR ACCESS BY
been terminated or of the father of the GRANDPARENT.
child. (a) A biological or adoptive grandparent may
(b) The limitations on filing suit imposed by this request possession of or access to a grandchild
section do not apply to a person who: by filing:
(1) has a continuing right to possession of or (1) an original suit; or
access to the child under an existing court (2) a suit for modification as provided by
order; or Chapter 156.
(2) has the consent of the child's managing (b) A grandparent may request possession of or
conservator, guardian, or legal custodian to access to a grandchild in a suit filed for the
bring the suit. sole purpose of requesting the relief, without
(c) The limitations on filing suit imposed by this regard to whether the appointment of a
section do not apply to an adult sibling of the managing conservator is an issue in the suit.
child, a grandparent of the child, an aunt who (c) In a suit described by Subsection (a), the
is a sister of a parent of the child, or an uncle person filing the suit must execute and attach
who is a brother of a parent of the child if the an affidavit on knowledge or belief that
adult sibling, grandparent, aunt, or uncle files contains, along with supporting facts, the
an original suit or a suit for modification allegation that denial of possession of or
requesting managing conservatorship of the access to the child by the petitioner would
child not later than the 90th day after the date significantly impair the child's physical health
the parent-child relationship between the child or emotional well-being. The court shall deny
and the parent is terminated in a suit filed by the relief sought and dismiss the suit unless the
the Department of Family and Protective court determines that the facts stated in the
Services requesting the termination of the affidavit, if true, would be sufficient to support
parent-child relationship. the relief authorized under Section 153.433.
Tex. Fam. Code § 102.007. Tex. Fam. Code § 153.433.
STANDING OF TITLE IV-D AGENCY. POSSESSION OF OR ACCESS TO
In providing services authorized by Chapter 231, GRANDCHILD.
the Title IV-D agency or a political subdivision (a) The court may order reasonable possession of
contracting with the attorney general to provide or access to a grandchild by a grandparent if:
Title IV-D services under this title may file a child (1) at the time the relief is requested, at least
support action authorized under this title, one biological or adoptive parent of the
including a suit for modification or a motion for child has not had that parent's parental
enforcement. rights terminated;
(2) the grandparent requesting possession of or
access to the child overcomes the
B. Chapter 153
presumption that a parent acts in the best
interest of the parent's child by proving by
Tex. Fam. Code § 153.431.
a preponderance of the evidence that denial
APPOINTMENT OF GRANDPARENT,
of possession of or access to the child
AUNT, OR UNCLE AS MANAGING
would significantly impair the child's
CONSERVATOR.
physical health or emotional well-being;
and
21
(3) the grandparent requesting possession of or (C) executed an affidavit of waiver of interest
access to the child is a parent of a parent of in child or an affidavit of relinquishment of
the child and that parent of the child: parental rights under Chapter 161 and the
(A) has been incarcerated in jail or prison affidavit designates an authorized agency,
during the three-month period licensed child-placing agency, or person
preceding the filing of the petition; other than the child's stepparent as the
(B) has been found by a court to be managing conservator of the child; and
incompetent; (2) the grandchild has been adopted, or is the
(C) is dead; or subject of a pending suit for adoption, by a
(D) does not have actual or court-ordered person other than the child's stepparent.
possession of or access to the child.
(b) An order granting possession of or access to a Tex. Fam. Code § 153.551.
child by a grandparent that is rendered over a SUIT FOR ACCESS.
parent's objections must state, with specificity (a) The sibling of a child who is separated from
that: the child because of an action taken by the
(1) at the time the relief was requested, at least Department of Family and Protective Services
one biological or adoptive parent of the may request access to the child by filing:
child had not had that parent's parental (1) an original suit; or
rights terminated; (2) a suit for modification as provided by Chapter
(2) the grandparent requesting possession of or 156.
access to the child has overcome the (b) A sibling described by Subsection (a) may
presumption that a parent acts in the best request access to the child in a suit filed for the
interest of the parent's child by proving by sole purpose of requesting the relief, without
a preponderance of the evidence that the regard to whether the appointment of a
denial of possession of or access to the managing conservator is an issue in the suit.
child would significantly impair the child's (c) The court shall order reasonable access to the
physical health or emotional well-being; child by the child's sibling described by
and Subsection (a) if the court finds that access is
(3) the grandparent requesting possession of or in the best interest of the child.
access to the child is a parent of a parent of
the child and that parent of the child:
C. Chapter 156
(A) has been incarcerated in jail or prison
during the three-month period
Tex. Fam. Code § 156.002.
preceding the filing of the petition;
WHO CAN FILE.
(B) has been found by a court to be (a) A party affected by an order may file a suit for
incompetent; modification in the court with continuing,
(C) is dead; or exclusive jurisdiction.
(D) does not have actual or court-ordered (b) A person or entity who, at the time of filing,
possession of or access to the child. has standing to sue under Chapter 102 may file
a suit for modification in the court with
Tex. Fam. Code § 153.434. continuing, exclusive jurisdiction.
LIMITATION ON RIGHT TO REQUEST (c) The sibling of a child who is separated from
POSSESSION OR ACCESS. the child because of the actions of the
A biological or adoptive grandparent may not Department of Family and Protective Services
request possession of or access to a grandchild may file a suit for modification requesting
if: access to the child in the court with
(1) each of the biological parents of the grandchild continuing, exclusive jurisdiction.
has:
(A) died;
(B) had the person's parental rights terminated;
or
22
D. Chapter 160
Tex. Fam. Code § 160.602.
STANDING TO MAINTAIN PROCEEDING.
(a) Subject to Subchapter D and Sections 160.607
and 160.609 and except as provided by
Subsection (b), a proceeding to adjudicate
parentage may be maintained by:
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be
adjudicated;
(4) the support enforcement agency or another
government agency authorized by other
law;
(5) an authorized adoption agency or licensed
child-placing agency;
(6) a representative authorized by law to act
for an individual who would otherwise be
entitled to maintain a proceeding but who
is deceased, is incapacitated, or is a minor;
(7) a person related within the second degree
by consanguinity to the mother of the
child, if the mother is deceased; or
(8) a person who is an intended parent.
(b) After the date a child having no presumed,
acknowledged, or adjudicated father becomes
an adult, a proceeding to adjudicate the
parentage of the adult child may only be
maintained by the adult child.
23
APPENDIX B
APPENDIX C
C.
Standing Denied – No Actual Care
C. Standing Denied - No Actual Care
In the Interest of C.T.H.S. and C.R.H.S.
311 S.W.3d 204
(Tex. App.—Beaumont 2010, pet. denied)
KREGER, JUSTICE.
Sheila R. Haley appeals the dismissal of her petition to be appointed sole managing conservator
with the right to designate the primary residence of the twin children of Charlena Renee Smith. In
two issues, Haley contends the trial court erred in determining that Haley lacked standing to pursue an
original suit affecting the parent-child relationship (“SAPCR”) and in considering affidavits offered
by Smith. Because Haley did not establish she has standing, and because we presume the trial court
ignored all incompetent evidence in reaching its conclusion, the order of the trial court is affirmed.
Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to
maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444-44 (Tex. 1993). A person who seeks conservatorship of a child must have standing to file suit.
In re K.K.C., 292 S.W.3d 788, 790 (Tex. App.—Beaumont 2009, orig. proceeding). “Whether a trial
court has subject-matter jurisdiction is a question of law subject to de novo review.” Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In an original suit affecting the parent-child relationship in which the petitioner seeks managing
conservatorship, the question of standing is a threshold issue. In re M.P.B., 257 S.W.3d 804, 808
(Tex. App.—Dallas 2008, no pet.). The Texas Legislature has provided a comprehensive statutory
framework for conferring standing in the context of suits involving the parent-child relationship. See
TEX. FAM.CODE ANN. §§ 102.003, .0035, .004, .0045 (Vernon Supp. 2009), § 102.006 (Vernon 2008).
A petitioner seeking managing conservatorship has the burden to prove standing. In re Smith, 262
S.W.3d 463, 465 (Tex. App.—Beaumont 2008, orig. proceeding [mand. denied]).
In an earlier mandamus proceeding, this Court held that a 2002 agreed order naming Haley as
joint managing conservator of C.T.H.S. and C.R.H.S. was void. Id. at 466-67. We identified two
reasons why the trial court lacked jurisdiction in 2002. First, the twins were only four months old at
the time the suit was commenced, and, therefore, Haley lacked standing. Id. at 465; see TEX.
FAM.CODE ANN. § 102.003(a)(9) (conferring standing on “a person, other than a foster parent, who
has had actual care, control, and possession of the child[ren] for at least six months ending not more
than 90 days preceding the date of the filing of the petition”). Second, in 2002 there was no real
controversy between Haley and Smith to be resolved by the court. Smith, 262 S.W.3d at 466. We
held that the temporary orders arising out of the motion to modify the void order must be vacated. Id.
at 467. The trial court vacated its prior orders on August 19, 2008.
Haley’s 2008 petition seeking to be named sole managing conservator is an original petition under
Chapter 153 of the Texas Family Code. Haley argues she has standing to file suit under section
102.003(a)(9). See TEX. FAM.CODE ANN. § 102.003(a)(9). At the request of the trial court, the parties
briefed the issue of whether Haley had standing to maintain an original SAPCR action and presented
supporting affidavits to the trial court. The trial court conducted a hearing at which it initially stated
TEXAS FAMILY LAW 145
Chapter 4
Suits Affecting the Parent-Child Relationship
that there were outstanding fact issues with regard to the allegations of whether the parent was unfit.1
However, after consideration of trial counsel’s arguments and the parties’ affidavits, the trial court
dismissed Haley’s SAPCR petition for lack of standing. The trial court made written findings of fact
and conclusions of law, as follows:
1. There is no evidence that, during the relevant time period, the parent Ms. Smith totally
abdicated her parental responsibilities over the children to the non parent Ms. Haley.
2. There is no evidence that, during the relevant time period, the parent Ms. Smith did not
exercise some care for, some control over or some supervision over the children at the same
time that the non parent Ms. Haley exercised some care for, some control over and some
supervision over the children.
3. There is no evidence that, during the relevant time period, the non parent Ms. Haley
exercised exclusive care for, control over and supervision over the children to the exclusion of
the parent Ms. Smith.
4. A parent must totally abdicate their parental responsibilities to another person during
the relevant time period before that other person can acquire standing to file an original
SAPCR with respect to that parent’s child.
5. A parent’s allowing of a non parent to have some care for, some control over and some
supervision over the parent’s child during the relevant time period is insufficient for the non
parent to acquire standing to file an original SAPCR with respect to that child.
6. If a parent, to any extent whatsoever, retains or exercises any care for, any control over
or any supervision over their child during the relevant time period, then a non-parent cannot
as a matter of law acquire standing to file an original SAPCR with respect to that child.
7. During the relevant time period, a non-parent must exercise exclusive care for, control
over and supervision over a child (not necessarily continuous for the entire time period, but
during the relevant time period) to the exclusion of the child’s parent in order to acquire
standing to file an original SAPCR with respect to that child.
On appeal, Haley argues that the trial court’s conclusions of law are erroneous. She states she
“does not necessarily disagree with the factual findings,” but “the factual findings have no effect as
applied, because they are based on the erroneous conclusions of law.”
We are to consider the findings as a whole and adopt the construction that gives effect to all
material findings. See generally De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 360 (1960).
When the findings are “subject to more than one reasonable construction, they should be given that
meaning which will support the action of the court” as expressed in the order. Id. We conclude the
trial court determined Smith was a fit parent adequately caring for her children. See TEX.R. CIV. P.
299.2 Although Haley challenges the court’s conclusions of law, she does not argue on appeal that
Smith does not adequately care for her children.
1
Oral statements by the trial judge may not be considered as a substitute for findings of fact or conclusions of law.
See In the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); Tate v. Tate, 55 S.W.3d 1, 7 n. 4 (Tex. App.—El
Paso 2000, no pet.). Furthermore, when a trial court issues findings that conflict with an initial finding, the later
findings control over the earlier findings. Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876
S.W.2d 940, 960 (Tex. App.—Beaumont 1994, writ denied).
2
Rule 299. Omitted Findings
When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds
of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a
146 TEXAS FAMILY LAW
C.
Standing Denied – No Actual Care
This Court stated as follows in K.K.C.:
The interest of parents in the “care, custody, and control” of their children “is perhaps the
oldest of the fundamental liberty interests” recognized by the United States Supreme Court.
(Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). Furthermore,
this State has long recognized that the “natural right which exists between parents and their
children is one of constitutional dimensions.” See Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re Pensom, 126
S.W.3d 251, 254 (Tex. App.—San Antonio 2003, orig. proceeding).
In re K.K.C., 292 S.W.3d at 792 (footnote omitted). “These parental interests are a fundamental
right protected by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.” In re Pensom, 126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, orig. proceeding)
(citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). “Texas statutes
are intended by the Legislature to be in compliance with the Constitutions of this State and the United
States.” In re K.K.C., 292 S.W.3d at 792 (citing TEX. GOV’T CODE ANN. § 311.021(1)(Vernon 2005))
(footnote omitted). “A court construes a statute to give effect to the Legislature’s intent as expressed
in the actual language used in the statute.” Id. (citing Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.
2000) and In re Pensom, 126 S.W.3d at 255-56).
The power of a trial court to adjudicate disputes between a parent and a non-parent, and to enforce
its own orders contrary to a parent’s decisions concerning her children, constitutes state involvement
that implicates the parent’s fundamental liberty interests in the care, custody, and control of her
children. See Troxel, 530 U.S. at 65-76, 120 S. Ct. 2054. The jurisdictional requirement of standing
helps ensure that a parent's constitutional rights are not needlessly interfered with through litigation.
See generally In re Pensom, 126 S.W.3d at 255 (“[J]urisdictional prerequisite of standing [in
grandparent access context] serves to ensure that the statutory scheme is narrowly tailored so that a
parent’s personal affairs are not needlessly intruded upon or interrupted by the trauma of litigation by
any third party seeking access.”). As the United States Supreme Court explained in Troxel, “[S]o long
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 to further question the ability of that parent to
make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69,
120 S. Ct. 2054 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)).
The standing statutes should be construed in a manner consistent with the constitutional principles
stated in Troxel. See In re Pensom, 126 S.W.3d at 255-56. In the provision at issue here, the
Legislature chose the words “actual care, control and possession.” TEX. FAM.CODE ANN. §
102.003(a)(9). We presume each word was used for a purpose, and give each word effect if it is
reasonable and possible to do so. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591,
593 (Tex. 2000). The law recognizes that a parent has the responsibility to care for her children. See
TEX. FAM.CODE ANN. § 151.001(a)(2) (Vernon 2008). The words “actual care” must be given effect
in the context of the responsibilities of the parent and the parent's liberty interests. See generally In re
K.K.C., 292 S.W.3d at 792-93 (meaning of “control” in section 102.003(a)(9)).
We note that section 102.003(a)(11) separately provides standing to a person with whom the child
and a parent have resided for at least six months if the “parent is deceased at the time of the filing of
presumed finding upon any ground of recovery or defense, no element of which has been included in the
findings of fact; but when one or more elements thereof have been found by the trial court, omitted
unrequested elements, when supported by evidence, will be supplied by presumption in support of the
judgment....
TEXAS FAMILY LAW 147
Chapter 4
Suits Affecting the Parent-Child Relationship
the petition[.]” TEX. FAM.CODE ANN. § 102.003(a)(11). Presumably, a person residing with a parent
and child may care for the child over the course of time, yet that person would not have standing
simply by the care that would normally be exercised when residing in the same household with the
parent and the child. If the same degree of care, control, and possession that would accompany living
with the parent and child were sufficient to establish standing under section 102.003(a)(9), the
requirement that the parent be deceased in section 102.003(a)(11) would be without effect, because
standing would separately exist under section 102.003(a)(9). We should not construe section
102.003(a)(9) so broadly that section 102.003(a)(11) is rendered meaningless. See Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 441-42 (Tex. 2009) (noting that a statute should not be
interpreted in a manner that renders parts of it meaningless).
The Fort Worth Court of Appeals in the case of In re M.J.G., 248 S.W.3d 753, 757-59 (Tex.
App.—Fort Worth 2008, no pet.), considered the “actual care” requirement in section 102.003(a)(9).
In M.J.G., the court held that grandparents who alleged “M.J.G. had lived with them since she was
born[,] with the exception of one two-week period when she stayed with her parents in another
town[,]” nevertheless lacked standing under section 102.003(a)(9). Id. at 757, 759. Even though
M.J.G. and her brother lived with the grandparents, and the grandparents performed day-to-day
caretaking duties for the children, the children’s parents were also living with the children in the
home, and there was no evidence that the parents did not care for the children or that the parents had
abdicated their parental duties and responsibilities to the grandparents. See id. at 758-59. Haley
argues that “the decision reached in [M.J.G.] incorrectly construes TEX. FAM.CODE § 102.003(a)(9).”
She argues that a parent often lives with others, and that the best interest of the children should be
considered.
The holding in M.J.G. appears to be consistent with the meaning of the language used by the
Legislature, the constitutional liberty interests retained by a fit parent adequately caring for her
children, and the statutory scheme for standing set forth in the Family Code. See In re K.K.C., 292
S.W.3d at 793. Standing does not turn on whether a trial court agrees or disagrees with a parent’s
decision concerning the best interest of her children, or a parent’s decision regarding who may
associate with her children. Specifically, when someone other than a parent claims standing under the
“actual care” requirement of section 102.003(a)(9), the court considers whether the parent is
adequately caring for her children. See TEX. FAM.CODE. ANN. § 102.003(a)(9); In re M.J.G., 248
S.W.3d at 757-59; see also Troxel, 530 U.S. at 68-69, 120 S. Ct. 2054 (presumption that fit parents act
in the best interest of their children); see generally In re Pensom, 126 S.W.3d at 255 (considering
limitations of intrusion into the parent-child relationship in the grandparent access context). Although
Haley lived with the children, Smith also lived with her children in the home, and the record does not
establish that Smith failed to adequately care for her children or that she abdicated her parental duties
and responsibilities. See In re M.J.G., 248 S.W.3d at 757-59; see also In re K.K.C., 292 S.W.3d at
792-94.
In issue two, Haley complains about the affidavits Smith submitted to the trial court. Haley filed a
motion to strike Smith’s affidavits. The trial court stated generally that the court was granting proper
objections and overruling improper ones. Haley did not request clarification. We presume the trial
court disregarded incompetent evidence. See Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982).
Haley had the burden to establish standing. See In re Smith, 262 S.W.3d at 465. The trial court
could reasonably conclude she failed to meet her burden. We overrule issues one and two. The trial
court’s order is affirmed.
AFFIRMED.
148 TEXAS FAMILY LAW
APPENDIX D
Chris Daniel
HARRIS COUNTY DISTRICT CLERK
P.O. BOX 4651
HOUSTON, TEXAS 77210-4651
Certificate Of Disposition
DATE: 9/8/2014
NAME: DAVIS, JOSEPH ANDRE
DATE OF BIRTH: 3/19/1973
This certificate is issued under seal, certifying that the information contained herein is a true and
correct restatement of the summary electronic data of the records filed and/or recorded in the
District Clerk's Office, as it appears on this date. A criminal search was conducted from 1976 to
present. Records pertaining to federal entities, other Counties', Justices of the Peace or other
Municipalities' Class C misdemeanor will NOT be displayed.
The search results are dependent on identifiers entered by the user.
The following 1 charges were found:
FILING DATE: 1/24/1991 DEFENDANT NAME: DAVIS, JOSEPH ANDRE
CASE: 910312101010 COURT: 005
OFFENSE REPORT NO.: NOT AVAILABLE
OFFENSE: THEFT $20-$200 LEVEL/DEGREE: Misdemeanor B
DISPOSITION:
DEFERRED ADJUDICATION OF GUILT
4/2/1991 : PROBATION 180 DAYS
4/2/1991 : FINE $50
10/4/1991 : DEFERRED ADJUDICATION TERMINATED
(DAVIS, JOSEPH ANDRE - PAGE: 2)
The following definitions apply only if cited as a part of the disposition above.
12.44 (b) The court authorized the state to prosecute the case as a misdemeanor under Texas
Penal Code section 12.44 (b)
Deferred Adjudication of guilt-the court deferred further proceedings without entering a finding of
guilt and placed the defendant on community supervision.
Deferred Adjudication of guilt terminated, defendant charged, case dismissed defendant
completed community supervision and a dismissal and discharge may not be deemed a
conviction (felony or misdemeanor) for the purposes of disqualification disabilities imposed by law
for conviction of an offense.
Witness my official hand and seal of office on 9/8/2014
201 CAROLINE - PO BOX 4651 - HOUSTON, TEXAS 77210-4651 - (713) 755-7300
APPENDIX E
9/5/2014 Messages Print.txt Sandra Lopez Mother
1. Print All
2.
3. Select a discussion: Me - Sandra ( 8323263522 )
Jenn Davis is Me
4.
5.
6. - Me, 17/06/2013 15:33
Step Mother
7. Hey sandra we r takn the little kids to six flags this weekend we r leavn thurs ane coming back saturday and I wanted to c if jordan will
8.
9. - Sandra, 17/06/2013 15:36
10. She has tournaments this weekend and every weekend until the end of July
11.
12. - Me, 06/07/2013 11:05
13. Hey sandra I requested a providers list for dentist I'm just waiting on it
14.
15. - Sandra, 06/07/2013 14:52
16. Thanks Jennifer
17.
18. - Me, 10/07/2013 15:08
19. Hey sandra joe said u were suppose to b going out of town in july what weekend are u going cause we r going out of town 4 my bday but tryn
20.
21. - Sandra, 10/07/2013 15:11
22. The 14th to the 21st vacation. With everyone. Then with Jay the 28th through 31st in Denton. Hope that helps.
23.
24. - Sandra, 10/07/2013 15:16
25. I hate to ask again. But, have they sent you a list of dentist the kids could go to yet? Jordan's tooth is really bothering here. Locatio
26.
27. - Sandra, 10/07/2013 15:17
28. r just need to get her seen.
29.
30. - Me, 10/07/2013 15:41
31. Ok so they can go back to champions dental now they sent something over there verifying all 3 kids and they can go as soon as tommorrow...
32.
33. - Sandra, 10/07/2013 15:41
34. Thanks
35.
36. - Sandra, 10/07/2013 15:43
37. Thanks, I appreciate your help.
38.
39. - Me, 03/08/2013 12:58
40. Sandra when does jay need this stuff by
41.
42. - Sandra, 03/08/2013 13:02
43. He leaves the 22nd. Just whatever y'all can help with. Thanks
44.
45. - Me, 03/08/2013 13:04
46. Ok ill get on it
47.
48. - Sandra, 03/08/2013 13:05
49. I told Joe I will let you know when I buy stuff so we can scratch it off the list. Thanks again
50.
51. - Me, 03/08/2013 13:05
52. Ok just let me no cause joe will forget
53.
54. - Sandra, 03/08/2013 13:06
55. Ok I will text you and not him. Lol
56.
57. - Me, 03/08/2013 13:09
58. Ok
59.
60. - Me, 03/08/2013 13:52
61. I just bought the mirror blanket some tide detergent and bounce dryer sheets
62.
63. - Sandra, 03/08/2013 13:53
64. Damn your fast and good. Thanks
65.
66. - Sandra, 03/08/2013 20:18
67. Scratch off the list. Towels, bath rugs, shower caddy, laundry basket, lamps, one storage container and dry erase board.
68.
69. - Me, 03/08/2013 20:22
70. Ok done.
71.
72. - Me, 03/08/2013 20:23
73. Did u get both lamps and did u get a throw rug also or just bath rug
74.
75. - Sandra, 03/08/2013 20:27
76. For both lamps. And bath rugs. Black rugs
77.
78. - Me, 03/08/2013 20:30
79. Ok
80.
81. - Me, 03/08/2013 20:30
82. The blanket we got is black also its a plush one...
83.
84. - Me, 03/08/2013 20:31
85. What color bed sheets does he need to match his comforter
1/7
9/5/2014 Messages Print.txt
86.
87. - Sandra, 03/08/2013 20:31
88. Great minds think a like. Lol
89.
90. - Me, 03/08/2013 20:32
91. Rt.lol
92.
93. - Sandra, 03/08/2013 20:33
94. Grey or off white. Either would match.
95.
96. - Me, 03/08/2013 20:33
97. Ok
98.
99. - Me, 05/08/2013 20:24
100. Hey sandra u can pick her up the 16th and drop her back off the 21st and pick her back up the 24th....will that work 4 u?
101.
102. - Sandra, 05/08/2013 20:33
103. We leave for Denton on the 22nd. But the rest is fine.
104.
105. - Me, 05/08/2013 20:58
106. Ok we gotta wk that weekend so she will have to stay with granny so if u wanna take her to denton u can or she can stay either way is fine
107.
108. - Sandra, 05/08/2013 21:26
109. I will probably just take her so she can say bye to jay and see the campus.
110.
111. - Me, 05/08/2013 21:48
112. Ok
113.
114. - Me, 07/08/2013 14:32
115. Hey sandra what time u coming to get jordan
116.
117. - Sandra, 07/08/2013 14:33
118. At 4
119.
120. - Me, 07/08/2013 14:33
121. Ok
122.
123. - Sandra, 10/08/2013 20:43
124. Hey Jenn, I got Jay a few more things. Back rest pillow, an area rug, and a can opener.
125.
126. - Me, 10/08/2013 20:46
127. Ok I scratched it off...I haven't had time to go again yet I will go do some more when we get back from six flags
128.
129. - Sandra, 10/08/2013 20:47
130. Your fine, I haven't had much time either.
131.
132. - Sandra, 17/08/2013 20:33
133. Hey Jenn... Went shopping for Jay again. All bed items are bought and all towels are bought.
134.
135. - Me, 17/08/2013 20:34
136. Ok ill mark it off
137.
138. - Sandra, 17/08/2013 20:35
139. Thanks
140.
141. - Me, 22/09/2013 13:45
142. Be there in 5 minutes
143.
144. - Me, 04/10/2013 17:02
145. Hey sandra can u bring jordan over when she gets done with practice
146.
147. - Sandra, 04/10/2013 17:07
148. I won't be able to because I'm not the one taking her to practice. I will be at Joeys game in Humble.
149.
150. - Sandra, 01/11/2013 21:03
151. Thanks Jenn. She said she had fun.
152.
153. - Me, 01/11/2013 21:04
154. No prob....I wanted to take more but I couldn't get her to smile...glad she had fun...
155.
156. - Me, 01/11/2013 21:05
157. Oh and btw I'm sending all that candy hm...
158.
159. - Sandra, 01/11/2013 21:06
160. Okay... Don't y'all wanna keep it. Lol... Imagine the kids and all that sugar. The boys use to bounce off the walls.
161.
162. - Me, 01/11/2013 21:08
163. We got plenty they got 2 bags full...they will b doin plenty of bouncing...lol...poor jake got tired so jordan and josh continued on with
164.
165. - Me, 01/11/2013 21:08
166. Got 1 more pic for u
167.
168. - Sandra, 01/11/2013 21:09
169. Poor thing.
170.
171. - Me, 01/11/2013 21:11
2/7
9/5/2014 Messages Print.txt
172. Yep...I sent it to jay and joey also
173.
174. - Sandra, 01/11/2013 21:12
175. I'm sure they will like it.
176.
177. - Me, 15/11/2013 18:59
178. I'm here
179.
180. - Me, 17/11/2013 15:34
181. Hey sandra I'm gettn off wrk now and I can have jordan hm around 430 is that ok
182.
183. - Sandra, 17/11/2013 15:36
184. That's fine, I'm home already. Thanks
185.
186. - Me, 27/11/2013 21:10
187. Jay told me he wanted a 3ds so I just bought him one for xmas....
188.
189. - Me, 27/11/2013 21:10
190. Him and josh want same thing so I just got 2
191.
192. - Sandra, 27/11/2013 21:15
193. Okay. He told me the same thing. How ironic him Josh wanted the same thing. lol
194.
195. - Me, 27/11/2013 21:17
196. And the same damn game....I'm havn a hard time finding it tho....josh couldn't wait for jay to get here so they could talk pokemon...lol..
197.
198. - Sandra, 27/11/2013 21:21
199. How stinking funny. Two peas in a pod.
200.
201. - Me, 27/11/2013 21:22
202. And jake and Joey r the same way
203.
204. - Sandra, 27/11/2013 21:23
205. Yup....
206.
207. - Me, 28/11/2013 22:41
208. Hey sandra what size pants does jordan wear
209.
210. - Sandra, 28/11/2013 22:43
211. I think a 16
212.
213. - Me, 28/11/2013 22:43
214. Ok thx
215.
216. - Sandra, 28/11/2013 22:44
217. No problem
218.
219. - Me, 20/12/2013 17:35
220. I left my phone in car and I know I don't suppose to have her till December 28 ...do I still pick her up today
221.
222. - Me, 22/12/2013 17:51
223. Hey Sandra jordan left her phone and ds here
224.
225. - Sandra, 22/12/2013 17:52
226. Can you just put it up for her. She'll get them Tuesday.
227.
228. - Me, 22/12/2013 17:53
229. Sure can
230.
231. - Sandra, 22/12/2013 17:54
232. Thanks
233.
234. - Me, 03/01/2014 14:43
235. Im here
236.
237. - Sandra, 03/01/2014 14:46
238. Ok they are coming
239.
240. - Me, 03/01/2014 14:46
241. Ok no hurry
242.
243. - Me, 04/01/2014 16:41
244. Thx for the tea
245.
246. - Sandra, 04/01/2014 16:43
247. No problem
248.
249. - Me, 17/01/2014 19:02
250. Hey Sandra the new dental insurance is MetLife and its suppose to be way better. The group id 27747 and the number is 1-888-825-
3368
251.
252. - Me, 19/01/2014 20:45
253. Hey sandra joey asked if my mom could get him 2 tickets to the rodeo for him and his date and I wanted to c if it needed to b on the weeke
)
254.
255. - Sandra, 19/01/2014 20:49
3/7
9/5/2014 Messages Print.txt
256. Either is fine
257.
258. - Me, 19/01/2014 20:54
259. Ok....cause a couple of ones he gave me were during the week...as soon as I find out which night she gets Ill let u no.
260.
261. - Sandra, 19/01/2014 20:55
262. Ok thanks
263.
264. - Me, 31/01/2014 09:22
265. Hey sandra we left Jordan backpack on porch cause she said she needs more clothes
266.
267. - Sandra, 31/01/2014 09:25
268. Thanks
269.
270. - Me, 27/02/2014 09:52
271. Hey sandra I am tryin to get everything together for the usher concert next Friday the 7th is all the kids gonna b able to go?
272.
273. - Sandra, 27/02/2014 09:54
274. I'm sorry we are going to get Jay that day and were spending the night there.
275.
276. - Me, 27/02/2014 09:55
277. Is jordan and joey going with u
278.
279. - Sandra, 27/02/2014 09:56
280. Jordan is for sure. I'm not sure about Joey because of Track
281.
282. - Me, 02/03/2014 15:05
283. Im out front can u come out
284.
285. - Sandra, 03/03/2014 11:00
286. Thank you so much for making the dirty rice. It was very hard keeping Jordan and Joey out of it. Also, do you know what days in April y'a
287.
288. - Sandra, 03/03/2014 11:00
289. the trip? I have to let her coach know.
290.
291. - Me, 03/03/2014 13:17
292. You are welcome and we will be gone April 18-21
293.
294. - Sandra, 03/03/2014 13:19
295. Thanks! Anything over Spring Break? Her Coach is trying to see who is going to be in town and when.
296.
297. - Me, 03/03/2014 13:22
298. Let me chk on spring break...
299.
300. - Sandra, 03/03/2014 13:23
301. Ok thank you
302.
303. - Me, 03/03/2014 13:23
304. Can I pick them up around 515 on friday for the rodeo
305.
306. - Sandra, 03/03/2014 13:24
307. Yes
308.
309. - Me, 03/03/2014 13:24
310. Ok we r gonna leave straight from your house to the rodeo
311.
312. - Sandra, 03/03/2014 13:27
313. Ok
314.
315. - Me, 03/03/2014 14:37
316. Mar 9-12 is when we gonna do something
317.
318. - Sandra, 03/03/2014 14:53
319. Thanks
320.
321. - Me, 03/03/2014 14:54
322. No prob
323.
324. - Sandra, 03/03/2014 14:54
325. Will y'all be out of town those 4 days are here.
326.
327. - Me, 03/03/2014 14:55
328. Out of town
329.
330. - Sandra, 03/03/2014 14:56
331. Ok
332.
333. - Me, 08/03/2014 12:30
334. Hey sandra joey really wants to go to the rodeo to see easton corbin but with leslie movn out it hurt us rt now...is there anyway u could
335.
336. - Sandra, 08/03/2014 12:33
337. No problem, I can bring you the money later today.
338.
339. - Me, 08/03/2014 12:34
340. Ok.thx...I no he really wanted them....he even asked my mom...lol...
341.
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342. - Sandra, 08/03/2014 12:36
343. Thank you. That's joeys favorite
344.
345. - Me, 08/03/2014 12:37
346. Well glad we could all come together and make it happen for him....and he loves where the seats are...
347.
348. - Sandra, 08/03/2014 12:40
349. Good, he is so excited. He said he is staying the night with y'all tonight. So I will send him with the money and clothes for Jordan
350.
351. - Me, 08/03/2014 12:41
352. Ok
353.
354. - Me, 08/03/2014 20:32
355. Hey sandra u dnt have to come tonight u can come tommorrow if u want
356.
357. - Me, 12/03/2014 21:54
358. Hey sandra I had joe days wrong. He is off friday
359.
360. - Sandra, 12/03/2014 23:12
361. Okay I will tell Jay
362.
363. - Me, 13/03/2014 11:03
364. Good morning. Is there anyway that anyone of the kids could spend the night tonight and joe could bring them hm early n the morn. I have a
365.
366. - Sandra, 13/03/2014 12:52
367. Jay will do it since he was going to spend time with joe anyway.
368.
369. - Me, 13/03/2014 14:27
370. Uncle dana is coming later so jay can wait till morn...thx tho
371.
372. - Sandra, 13/03/2014 14:28
373. Are you sure?
374.
375. - Me, 18/03/2014 19:12
376. Im sending jordan some dirty rice and ribs
377.
378. - Sandra, 18/03/2014 21:31
379. Thank you. She is eating now.
380.
381. - Me, 18/03/2014 21:40
382. Sure no problem I new she liked it.
383.
384. - Me, 20/03/2014 12:38
385. Hey Sandra I got joeys tix. He said he was gonna come by later and get them will jordan be with him? Just seeing who all I need to feed la
386.
387. - Sandra, 20/03/2014 14:05
388. Jordan can come with him.
389.
390. - Me, 20/03/2014 14:10
391. Ok
392.
393. - Me, 05/04/2014 16:21
394. Hey sandra would jordan be able to leave school early on Thursday when we are goin out of town around 215 if not no problem just tryin to
395.
396. - Sandra, 05/04/2014 16:25
397. That's fine.
398.
399. - Me, 05/04/2014 16:29
400. Ok thanks.
401.
402. - Me, 10/04/2014 18:08
403. Hey sandra do u have a gallon size baggy u could send with jordan.
404.
405. - Sandra, 10/04/2014 18:12
406. Just one?
407.
408. - Me, 10/04/2014 18:14
409. Yes Jake has a field trip tommorrow and has to put his lunch n a baggie and I didnt no I was out and he has a program now and dnt wanna go
410.
411. - Sandra, 10/04/2014 18:15
412. No problem
413.
414. - Me, 10/04/2014 18:19
415. Thanks a bunch
416.
417. - Me, 15/04/2014 16:01
418. Hey sandra jordan said she has a bathing suit and plenty of shorts just wanna make sure? She said they were Dom long shorts
419.
420. - Sandra, 15/04/2014 16:09
421. I think she does.
422.
423. - Me, 15/04/2014 16:10
424. Ok if not just let me no wanna make sure she has everything
425.
426. - Sandra, 15/04/2014 16:19
427. I will have her try stuff on when she gets home.
5/7
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428.
429. - Me, 15/04/2014 16:29
430. Ok thx
431.
432. - Me, 16/04/2014 16:09
433. Hey sandra the new dental insurance is metlife group id 191112 and ph number is 888-825-3368
434.
435. - Me, 16/04/2014 18:50
436. Sandra can u make sure Jordan's 3ds is charged also
437.
438. - Sandra, 16/04/2014 18:52
439. Not sure where it is.
440.
441. - Me, 16/04/2014 18:54
442. Oh ok she told me she was gonna bring it thats y I asked. Can joe pick her suitcase up on his way hm n the morn
443.
444. - Sandra, 16/04/2014 18:55
445. I will look for it. What time? I need to make sure someone is here
446.
447. - Me, 16/04/2014 18:56
448. Prbly 730-8 will that work?
449.
450. - Sandra, 16/04/2014 18:57
451. Yes
452.
453. - Me, 16/04/2014 18:57
454. Ok thx
455.
456. - Sandra, 16/04/2014 18:57
457. What time is Joe picking her up from school?
458.
459. - Me, 16/04/2014 19:02
460. Let me see exactly what time the flt leaves and I will tell u.
461.
462. - Me, 16/04/2014 19:45
463. Is 1 o'clock ok
464.
465. - Sandra, 16/04/2014 19:46
466. Ok
467.
468. - Sandra, 16/04/2014 21:59
469. Sorry to bother you so late. Is Jordan's phone charger there. Haven't seen it since the last time she spent the weekend there.
470.
471. - Me, 16/04/2014 22:01
472. Idk I will look but idk what it looks like if not dnt worry I will buy her another one
473.
474. - Sandra, 16/04/2014 22:02
475. It has an iPhone end and it's black or dark grey.
476.
477. - Me, 16/04/2014 22:03
478. Let me look hold on
479.
480. - Sandra, 16/04/2014 22:03
481. Ok
482.
483. - Sandra, 16/04/2014 22:09
484. Looks like it
485.
486. - Sandra, 16/04/2014 22:09
487. Thanks for checking
488.
489. - Me, 16/04/2014 22:10
490. Ok I put it n my purse
491.
492. - Me, 16/04/2014 22:10
493. No problem
494.
495. - Sandra, 16/04/2014 22:11
496. Thanks again. I found the DS too. Looks like she is ready.
497.
498. - Me, 16/04/2014 22:12
499. Ok. Josh got a bunch of new games for his bday and she wanted to play some
500.
501. - Sandra, 16/04/2014 22:14
502. Ok good. Y'all have fun.
503.
504. - Me, 24/04/2014 16:43
505. Joe doesn't have his ph but he is on the way to get Jordan
506.
507. - Sandra, 24/04/2014 16:44
508. Ok
509.
510. - Me, 07/05/2014 14:29
511. What time should I get jordan tonight?
512.
513.
6/7
9/5/2014 Messages Print.txt
514. Joe
515.
516. - Sandra, 07/05/2014 14:55
517. Not sure, in the hospital
518.
519. - Me, 07/05/2014 14:57
520. Ok let me know
521.
522. - Sandra, 07/05/2014 14:58
523. I'm in the hospital for not be able to breath. Northwest
524.
525. - Me, 07/05/2014 15:23
526. Sorry to hear that hope you get better soon. Im available on Friday also if she can come for a little
527.
528. - Sandra, 07/05/2014 16:57
529. They are admitting me to ICU
530.
531. - Me, 07/05/2014 17:00
532. Call me on Jennifer phone. ... im sorry. To hear that
533.
534. - Sandra, 07/05/2014 17:01
535. I can't . That have strong oxygen on me. What's up
536.
537. - Me, 07/05/2014 17:04
538. Just to talk in person more personable.
539.
540. - Sandra, 07/05/2014 17:19
541. Can we talk later
542.
543. - Me, 07/05/2014 17:20
544. I was just wanting to talk about how you are doing
545.
546. - Sandra, 07/05/2014 17:21
547. Ok
548.
549.
7/7
10/22/2014 Messages Print.txt
1. Print All
2.
3. Select a discussion: Me - Sandra ( 8323263522 )
4.
5.
Sanda Lopez and Joe Davis
6. - Sandra, 11/01/2014 20:21
7. Haven't left yet. Jay wanted to come say bye too
8.
9. - Me, 11/01/2014 20:22 Text unchanged
10. Ok
11.
12. - Me, 15/01/2014 17:35 Me on Text is Joe Davis
13. Call me...I work Thursday and Saturday ...off Friday and Sunday.
14.
15. - Me, 17/01/2014 16:01
16. What's a good time. is Joey driving later?
17.
18. - Sandra, 17/01/2014 16:50
19. Not sure about Joey. Since he has to be at school early.
20.
21. - Me, 17/01/2014 16:52
22. Can't do what ever he need from here?
23.
24. - Me, 17/01/2014 16:52
25. I took off tomorrow to be here
26.
27. - Sandra, 17/01/2014 16:53
28. You knew already he had practice. I told you
29.
30. - Me, 17/01/2014 16:55
31. Did not think that would stop him from coming. I don't live that far to make much of a difference.
32.
33. - Sandra, 17/01/2014 16:56
34. I haven't spoke with him so I don't know
35.
36. - Me, 17/01/2014 16:58
37. I'm close...I did not think it would make that much of a difference.
38.
39. - Sandra, 17/01/2014 16:59
40. I will have him call u when he gets home.
41.
42. - Sandra, 17/01/2014 17:00
43. What time on Jordan?
44.
45. - Me, 17/01/2014 17:05
46. I'm ready....I didn't know joey wasn't coming I assumed he was coming time is important i though what ever he needs to do he can do it from he
47.
48. - Sandra, 17/01/2014 17:07
49. I'm not saying he's not coming I'm just not sure he's staying the night
50.
51. - Sandra, 17/01/2014 17:09
52. You need to talk to him but he's at school til 7:30
53.
54. - Me, 17/01/2014 17:11
55. This is not the way things r suppose to be. I expected some time im off this weekend.
56.
57. - Me, 17/01/2014 17:13
58. I don't want to just pay I want more and im just trying to get the time that belongs to me. I have a extra vehicle if that's a problem.
59.
60. - Sandra, 17/01/2014 17:13
61. I'm not saying your not getting time but what is he suppose to do about practice? This is the last two weeks of this. There's tonight and tomor
62.
63. - Sandra, 17/01/2014 17:14
64. g and Sunday
65.
66. - Sandra, 17/01/2014 17:15
67. Your taking this out of content. Not arguing with you. Damn your still going to get time.
68.
69. - Me, 17/01/2014 17:15
70. Same thing he would do from your house. ...no difference if there is let me know.
71.
72. - Me, 17/01/2014 17:16
73. Im on my way got a minute?
74.
75. - Sandra, 17/01/2014 17:17
76. Ok
77.
78. - Me, 17/01/2014 17:37
79. Here
80.
81. - Sandra, 17/01/2014 17:39
82. Give us a few minutes
83.
84. - Me, 17/01/2014 19:46
85. Joey there
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10/22/2014 Messages Print.txt
86.
87. - Sandra, 30/01/2014 10:26
88. R u getting Jordan tonight
89.
90. - Me, 30/01/2014 10:26
91. Yes
92.
93. - Sandra, 30/01/2014 10:51
94. Don't forget Joey has that play tonight. Tomorrow and Saturday
95.
96. - Me, 30/01/2014 10:52
97. Ok
98.
99. - Sandra, 30/01/2014 10:52
100. When do you want to pick up Jordan
101.
102. - Me, 30/01/2014 11:07
103. Wanted to see if I just keep her tonight I work on Saturday.
104.
105. - Sandra, 30/01/2014 13:02
106. Ok
107.
108. - Sandra, 30/01/2014 13:03
109. But I have to wash her uniform pants for school.
110.
111. - Me, 30/01/2014 13:04
112. I will ...I have a washer and dryer.
113.
114. - Sandra, 30/01/2014 13:05
115. That's fine
116.
117. - Me, 30/01/2014 13:07
118. Just let me know what time
119.
120. - Sandra, 30/01/2014 13:08
121. 5 or so. Do you lunch for her too?
122.
123. - Me, 30/01/2014 13:08
124. Yes
125.
126. - Sandra, 30/01/2014 13:09
127. Okay... Will 5 work?
128.
129. - Me, 30/01/2014 13:11
130. Thats good ill be there.
131.
132. - Sandra, 30/01/2014 13:12
133. Ok
134.
135. - Me, 30/01/2014 16:56
136. Here
137.
138. - Sandra, 30/01/2014 17:00
139. Ok
140.
141. - Me, 30/01/2014 20:13
142. Hey sandra do u have the money to get us 3 adult and 3 kids tix to the play tommorrow night and I can give it to u tomorrow
143.
144. - Sandra, 31/01/2014 16:23
145. What time
146.
147. - Me, 31/01/2014 16:24
148. I'm ready
149.
150. - Sandra, 31/01/2014 16:25
151. 5 ?
152.
153. - Me, 31/01/2014 16:25
154.
155. Ok
156.
157.
158. - Me, 31/01/2014 16:57
159. Here
160.
161. - Me, 31/01/2014 19:08
162. Here
163.
164. - Sandra, 31/01/2014 19:09
165. Where
166.
167. - Sandra, 31/01/2014 19:10
168. At Spring?
169.
170. - Me, 31/01/2014 19:10
171. Yea
2/8
10/22/2014 Messages Print.txt
172.
173. - Sandra, 31/01/2014 19:11
174.
175. Ok. Let me know how it goes
176.
177. - Me, 31/01/2014 19:11
178. Ok.
179.
180. - Me, 05/02/2014 18:45
181. What are the kid doing on Saturday. Wanted to see they had some free time...I work till 6 tomorrow and josh has something at school tomorrow
182.
183. - Sandra, 05/02/2014 18:49
184. We will be in San Marcus this weekend. Im sorry
185.
186. - Me, 05/02/2014 18:50
187. Ok...thanks
188.
189. - Me, 10/02/2014 13:37
190. Have kids call me later... and I'm off the whole weekend. So I'm looking foward to it .
191.
192. - Sandra, 10/02/2014 13:40
193. Can I call you in a few?
194.
195. - Me, 10/02/2014 13:40
196. Ok
197.
198. - Me, 11/02/2014 17:45
199. Have kids call... i need to talk to Joey about those tickets. .. need to find out tonight.
200.
201. - Sandra, 11/02/2014 18:03
202. I'm not home will have him call
203.
204. - Me, 13/02/2014 16:10
205. Joey said he was coming tonight will wait on him and Jordan to come.
206.
207. - Sandra, 13/02/2014 16:15
208. Did he say what time?
209.
210. - Me, 13/02/2014 16:15
211. No
212.
213. - Sandra, 13/02/2014 16:17
214. Oh okay. This child does not tell me anything. Didn't know he had track after school.
215.
216. - Me, 13/02/2014 16:20
217. He didn't tell me either that he had practice after school
218.
219. - Sandra, 13/02/2014 16:22
220. Oh I thought he did
221.
222. - Me, 13/02/2014 17:15
223. Hey let's reschedule I feel like complete s*** right now. They probably won't get here till after 7
224.
225. - Sandra, 13/02/2014 18:07
226. Are you sure?
227.
228. - Me, 13/02/2014 18:10
229. Yes got bad heartburn and gonna hop in bed soon.
230.
231. - Sandra, 13/02/2014 18:11
232. Ok hope u feel better
233.
234. - Me, 22/02/2014 17:30
235. Call me
236.
237. - Me, 22/02/2014 18:21
238. I guess call me when you get free I'm off next weekend.
239.
240. - Me, 22/02/2014 19:29
241. Have Joey call me
242.
243. - Sandra, 22/02/2014 19:33
244. Ok
245.
246. - Me, 25/02/2014 12:36
247. Hey just want to know if Jordan was free tomorrow night could I pick her up and bring her back home because I have to work Thursday.
248.
249. - Sandra, 25/02/2014 13:10
250. She has practice from 8 to 9:30 tomorrow
251.
252. - Me, 25/02/2014 13:11
253. Ok I can do 5 to 7:30
254.
255. - Me, 25/02/2014 13:12
256. And off Friday Saturday and Sunday.
257.
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10/22/2014 Messages Print.txt
258. - Sandra, 25/02/2014 13:12
259. Ok
260.
261. - Me, 25/02/2014 13:13
262. We need a schedule.
263.
264. - Sandra, 25/02/2014 13:15
265. She has practice Fri. 6:30 to 8:30 and game Saturday She has to be there at 9:45 , game at 10:30. Might have Sun. Practice at 4:30. Joey ha
266.
267. - Sandra, 25/02/2014 13:15
268. is weekend in San Antonio.
269.
270. - Sandra, 25/02/2014 13:15
271. I've printed their schedules for you.
272.
273. - Me, 25/02/2014 13:21
274. Its no give and take here.. its a bunch of dates that s not being made up. In order for this to work if loose time it has made up somewhere. ..
275.
276. - Me, 25/02/2014 13:24
277. My schedule. . Has to work with what they're doing. My schedule has to be taken into consideration. Because if it stays this way we are back t
278.
279. - Sandra, 25/02/2014 13:25
280. I warned you about select. You said okay. Not only that you said you would get her where she needs to be. I'm giving you tomorrow. And Sunday i
281.
282. - Sandra, 25/02/2014 13:26
283. aybe. I think the coach said every other Sun.. Plus you weren't worried about your last Thursday when you were out of town. Remember you agree
284.
285. - Me, 25/02/2014 13:29
286. Correct. . I agreed to a plan that allowed me to spend time with her also. So this is 1 of 2 parts ,so what is the rest of the plan.
287.
288. - Me, 25/02/2014 13:32
289. So is she playing for 1 or 2 teams? I thought it was for the 1 in the woodlands.
290.
291. - Sandra, 25/02/2014 13:32
292. Not only that you gave up your weekend because you were supposedly sick. But, yet your daughter see you on face at Jared shopping for a ring a
293.
294. - Sandra, 25/02/2014 13:32
295. n event the next day. Really?
296.
297. - Me, 25/02/2014 13:33
298. One day
299.
300. - Sandra, 25/02/2014 13:33
301. Will explain that later.
302.
303. - Me, 25/02/2014 13:46
304. Ok... I'm. Not fighting with you. I need a schedule That work with mine. Joey can do what he wants to. You also told me they were coming over
305.
306. - Sandra, 25/02/2014 13:50
307. I'm not fighting with you either and we do u do this when I'm at work. I never bother u at work.
308.
309. - Me, 25/02/2014 13:51
310. This is not working. We fixed the money your part now I need to fix mine.. sorry I won't bother you again I thought you could text.
311.
312. - Sandra, 25/02/2014 13:53
313. We will talk later. But, one thing. You never said trade weekends. See your boys activities come before Jordan's and that's not right either.
314.
315. - Sandra, 25/02/2014 13:53
316. u later.
317.
318. - Me, 25/02/2014 14:02
319. Really. .. we have nothing else to say don't bother calling.
320.
321. - Sandra, 25/02/2014 14:17
322. Look you keep talking to me like I'm a child and I'm not. talk to me like I'm an adult. Maybe then we could agree on stuff. And I have never st
323.
324. - Sandra, 25/02/2014 14:18
325. from seeing her. And I've given up my weekends several times just to make sure you get time. But, yet I'm not trying to work with you. I will c
326.
327. - Sandra, 25/02/2014 14:18
328. is evening. And explain her schedule.
329.
330. - Me, 25/02/2014 14:29
331. I won't ask you for any favors anymore. I know what time is mine and what not there is a simple way to do things.
332.
333. - Sandra, 25/02/2014 14:31
334. Hard to explain on text will call u. We can figure this out.
335.
336. - Me, 26/02/2014 14:19
337. What time r they coming?
338.
339. - Sandra, 26/02/2014 14:47
340. When Joey gets home. I thinking they are going to cancel practice.
341.
342. - Me, 26/02/2014 15:00
343. Ok
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344.
345. - Me, 27/02/2014 10:00
346. Not trying to fight but We already spent over 200 dollars on tickets and I made sure before we did they were free. So it is a must that Joey a
347.
348. - Sandra, 27/02/2014 10:02
349. Tony trying to fight either. You never asked me if they were free on that day.
350.
351. - Sandra, 27/02/2014 10:04
352. Wow.... Stupid auto correct. It's suppose to be not instead of tony
353.
354. - Me, 27/02/2014 10:09
355. I explained it and I also told you Joey wanted tickets for a school night ...
356. you also explained to me that you don't want to lose money after putting Jordan in 2 sports this issame thing. ..what should I expect because thi
357.
358.
359. - Sandra, 27/02/2014 10:11
360. I will see what I can do not promising anything yet. Will let you know tonight. And as for Joey you said school night. Friday is not a school n
361.
362. - Me, 27/02/2014 10:19
363. Jennifer also remember me talking to you she wanted to make sure before she spent the money. Joey said he was free and told me again last nig
364.
365. - Me, 27/02/2014 10:23
366. I forgot thats Spring break right?
367.
368. - Sandra, 27/02/2014 10:25
369. Can I call you in a few.
370.
371. - Me, 27/02/2014 10:25
372. Yes
373.
374. - Sandra, 01/03/2014 11:17
375. Let your daughter see you. Cause she is mad right now
376.
377. - Sandra, 03/03/2014 11:57
378. Jordan's coach needs the dates Jordan will be on y'all's trip in April. And needs to know if she will be here all week during Spring Break. She
379.
380. - Sandra, 03/03/2014 11:57
381. know ASAP
382.
383. - Me, 07/03/2014 08:38
384. Sorry I missed your call .... I feel asleep early last night.
385.
386. - Me, 20/03/2014 17:12
387. Almost there.
388.
389. - Me, 27/03/2014 17:53
390. Just checking in and seeing what schedule is for weekend I work sat but off Friday and Sunday. I'm at work today.
391.
392. - Me, 09/04/2014 16:18
393. We still on for this weekend with Jordan. Remember we switched
394.
395. - Sandra, 11/04/2014 17:00
396. When do u want Jordan back?
397.
398. - Me, 24/04/2014 10:36
399. What time should I pick Jordan up tonight?
400.
401. - Me, 24/04/2014 20:20
402. Any problems. .. you have go thru me....and what they told me was use my firefighters discount not yours then talk about discount not me. Jenn
403. You know I will just take my time. . Cause you have my money. Fine I won't ask you for any favors and you don't ask me for any.
404.
405. P.s im not trying to be a dick
406. You got what you wanted now its time for me to get what I want because guess what this is not working... as long as im paying my part im doing my
407.
408.
409.
410.
411. - Sandra, 24/04/2014 20:23
412. We will talk later wasn't trying to fight with you.
413.
414. - Me, 24/04/2014 20:27
415. Im at a loss and im not losing any more. Im not fighting I should be there with our daughter and in comfort and I put money into it also....I
416.
417. - Me, 24/04/2014 20:29
418. Time sorry not money
419.
420. - Sandra, 24/04/2014 20:31
421. r plans. Not trying to keep you out of the loop.
422.
423. - Sandra, 24/04/2014 20:31
424. Remember not Jordan's fault
425.
426. - Sandra, 24/04/2014 20:31
427. My dad has paid for all of this. Not me. Again don't want to fight. I have her tournament schedule now. We need to meet up and go over that and
428.
429. - Sandra, 24/04/2014 20:32
5/8
10/22/2014 Messages Print.txt
430. She see serves her dad time like you deserve your daughter time.
431.
432. - Sandra, 24/04/2014 20:32
433. Opps deserves
434.
435. - Me, 27/04/2014 12:07
436. Have Jordan call me later
437. After her. Practice. ..im also off Thursday. ... and this weekend.
438.
439. - Me, 27/04/2014 14:46
440. Is Jordan available?
441.
442. - Sandra, 27/04/2014 14:47
443. She not at practice she's at tournament
444.
445. - Me, 27/04/2014 14:48
446. Ok ...have her call when over.
447.
448. - Me, 28/04/2014 18:29
449. Im home missed ur call what's
450. Up
451.
452. - Me, 30/04/2014 08:36
453. If Jordan don't have anything on Thursday I'll see if I can keep her on Thursday night.
454.
455. - Sandra, 30/04/2014 19:12
456. That's fine
457.
458. - Me, 01/05/2014 14:39
459. Thanks ....What Time?
460.
461. - Sandra, 01/05/2014 16:15
462. Not sure, she Has a group project she's working on.
463.
464. - Me, 01/05/2014 16:16
465. ????
466.
467. - Me, 01/05/2014 16:17
468. Details... don't understand
469.
470. - Sandra, 01/05/2014 16:20
471. Honestly not sure what time. Will let you know when she gets home. Her and Savannah have been working on a group project
472.
473. - Me, 01/05/2014 16:51
474. Not sure if you called phone died.
475.
476. - Sandra, 01/05/2014 16:56
477. 30 mins. She needs to finish project at your house.
478.
479. - Me, 01/05/2014 17:02
480. Ok
481.
482. - Me, 02/05/2014 07:17
483. A little upset with Joey after yesterday....i tried to be fair about our time and work out a plan that he give me one night and that has happen
484.
485. - Me, 02/05/2014 07:47
486.
487. I hate to use our court order but I'm left without a choice.
488. I thought I was being fair....when was the last time Joey came as he was supposed to?
489.
490. - Me, 04/05/2014 12:05
491. Next time ....touch base with me. I have no idea what happened when I checked on Jordan all I knew is that she already left . All we discussed
492.
493. P.s I never received her schedule
494.
495.
496. - Me, 04/05/2014 12:41
497. Fine...don't communicate...I don't know how you see this working but ok.
498. I work Thursday can I have her on Wednesday.
499.
500. - Me, 09/05/2014 12:53
501. How r you doing?
502.
503. - Sandra, 09/05/2014 12:56
504. Can not believe I have pnuenmonia and congestive heart failure. I will here for a good while
505.
506. - Me, 09/05/2014 12:57
507. Im sorry to hear that...what room r you in.
508.
509. - Sandra, 09/05/2014 13:00
510. Not even sure I just know ICU
511.
512. - Me, 09/05/2014 13:01
513. What r the visitation schedule.
514.
515. - Me, 09/05/2014 13:03
6/8
10/22/2014 Messages Print.txt
516.
517. Is
518.
519. - Sandra, 09/05/2014 13:05
520. Not sure of that either. Call Joey he knows
521.
522. - Me, 09/05/2014 13:05
523. Ok
524.
525. - Me, 09/05/2014 17:29
526. Hope you get better soon. Can't stand to see you in there.
527. We need you so please get better soon.
528.
529. - Me, 10/05/2014 12:11
530. So ...how r you doing today?
531.
532. - Sandra, 10/05/2014 12:31
533. A little better. Now where close to braking out
534.
535. - Me, 10/05/2014 12:36
536. Well im glad that your feeling better it was hard seeing you there... we have been apart off each other life for more than half of our lives.
537. So im good now that ur getting better.
538.
539.
540.
541. - Sandra, 10/05/2014 16:03
542. Thanks... I will be in iICU awhile
543.
544. - Me, 10/05/2014 16:06
545. Well...let me know how I can help. Im off Monday and Tuesday. ..
546.
547. - Sandra, 10/05/2014 16:08
548. I will, thanks
549.
550. - Sandra, 10/05/2014 16:48
551. S
552.
553. - Sandra, 10/05/2014 16:49
554. This shit is scary and real
555.
556. - Me, 10/05/2014 16:53
557. I know....I wanted to stay the other day. I think when everything is said and done you will be better than you have been.
558. I'll come and sit with you some days.
559. I know its been awhile since we have really talked but you are still my best friend.
560.
561. - Sandra, 10/05/2014 17:12
562. That would. Be nice
563.
564. - Me, 10/05/2014 17:12
565. Ok
566.
567. - Me, 11/05/2014 09:32
568. Happy mother s day... Hope you have a good day.
569.
570. - Me, 11/05/2014 12:40
571. How r u doing today?
572.
573. - Sandra, 11/05/2014 15:26
574. I'm okay no change
575.
576. - Me, 11/05/2014 15:28
577. Ok...stop by for a little after work. ..How's Jay holding up
578.
579. - Sandra, 11/05/2014 15:29
580. He's good... I think it is scaring them all pretty good.
581.
582. - Me, 11/05/2014 15:30
583. All of us....
584.
585. - Sandra, 11/05/2014 15:32
586. And yea. Especially thinking I could of died
587.
588. - Me, 11/05/2014 15:35
589. No good. ..enough of that talk you should be home enjoying your day.not this
590.
591.
592. P.s.
593. With our occasional fight
594.
595. - Sandra, 11/05/2014 15:36
596. Lol...
597.
598. - Me, 11/05/2014 15:39
599. Yeah. ..to bad cause hooters is free for mother's day and I know how y'all like wings.
600.
601. - Sandra, 11/05/2014 15:40
7/8
10/22/2014 Messages Print.txt
602. Lol.... Have you spoke to your mom?
603.
604. - Me, 11/05/2014 15:41
605. Not yet... still thinking about it.
606.
607. - Sandra, 11/05/2014 15:43
608. You should . Even if it's just for that reason.
609.
610. - Me, 11/05/2014 15:46
611.
612. Working up to it..maybe later
613.
614. - Sandra, 11/05/2014 15:47
615. Got you maybe the boys could call and break the ice
616.
617. - Me, 11/05/2014 15:48
618. She will like that.
619.
620. - Sandra, 11/05/2014 15:50
621. Can you send me the number so I can have our boys call?
622.
623. - Me, 11/05/2014 15:52
624. (832) 468-1464
625.
626. - Sandra, 11/05/2014 16:43
627. They called
628.
629. - Me, 11/05/2014 16:44
630. Ok
631.
632. - Me, 12/05/2014 10:00
633. On my way...do you want anything
634.
635. - Me, 14/05/2014 10:26
636. Just checking in...how are you doing today?
637. Im at work and hate that I here today. ..so please when ever you can send me a text back.
638.
639.
8/8
APPENDIX F
I. 1017/201411:42:04 AM
Chris Daniel - District Clerk Harris County
Envelope No. 2743873
2014-58410 / Court: ~ By: Anais Aguirre
Filed: 1017/20149:58:17 AM
NO. _
IN THE INTEREST OF § IN THE DISTRICT COURT
§
J.A.D.AND J.A.D. § JUDICIAL DISTRICT
§
CHIT...DREN § HARRIS COUNTY, TEXAS
ORIGINAL PETITION IN SUIT AFFECTING THE
PARENT-CHll..D RELATIONSHIP
1. Discovery Level
Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas
Rules of Civil Procedure.
2. Parties
This suit is brought by FLOYD DANIEL LOPEZ and IRMA OLGA llMENEZ,
Petitioners. The last three numbers of FLOYD DANIEL LOPEZ's driver's license number are
885. The last three numbers of FLOYD DANIEL LOPEZ's Social Security number are 906.
The last three numbers of IRMA OLGA llMENEZ's driver's license number are 363. The last
three numbers of IRMA OLGA JIMENEZ's Social Security number are 498.
Respondent is JOSEPH ANDRE DAVIS.
Petitioners are the maternal grandparents of the children the subject of this suit.
Petitioners have standing to bring this suit in that neither parent had their parental rights
terminated; both petitioners are the biological maternal grandparents of the children in question
and have executed affidavits on knowledge and belief which contain supporting facts that denial
of their possession or access to the children would significantly impair the children's physical
health or emotional well-being. Further, the maternal grandparents are the parents of the
children's mother who died in May of this year.
I:::
Original Petition In Suit Affecting The Parent Child Relationship Page 1
3. Jurisdiction
No court has continuing jurisdiction of this suit or of the children the subject of this suit.
4. Children
The following children are the subject of this suit:
Name: JOSEPH ANDRE DAVIS II
Sex: M
Birth date: 10/30/1995
County of Residence: Harris
Name: JORDAN ADRIANNA DAVIS
Sex: F
Birth date: 07/26/2002
County of Residence: Harris
5. Person Entitled to Citation
The father of the children the subject of this suit is JOSEPH ANDRE DAVIS.
Process should be served at 3323 Rose Trace Dr., Spring, Texas 77386.
There are court-ordered conservatorships, court-ordered guardianships, or other court-
ordered relationships affecting the children the subject of this suit.
Information required by section 152.209 of the Texas Family Code will be provided in an
affidavit attached as Exhibit A.
6. Health Insurance Information
Information required by section 154.181(b) of the Texas Family Code is provided in the
statement attached as Exhibit B.
7. Property
:: ::
Original Petition In Suit Affecting The Parent Child Relationship Page 2
No property of consequence is owned or possessed by the children the subject of this suit.
8. Conservatorship
The mother of the children and prior managing conservator with the right to determine
the residence of the children has died. The appointment of the father as sole managing
conservator would not be in the best interest of the children. It is in the best interest of the
children that Petitioners and JOSEPH ANDRE DAVIS be appointed joint managing conservators
of the children.
Petitioners should be designated as the conservators who have the exclusive right to
designate the primary residence of the children. The residence of the children should be
restricted to the existing school district of the children in Harris County.
Petitioner requests the Court to appoint a parenting facilitator. There is good cause for
appointment of a parenting facilitator in this is a high conflict case and the appointment would be
in the best interest of the children.
9. Petitioners' Supporting Affidavits:
Petitioner Jimenez affidavit is attached as Exhibit C
Petitioner Lopez affidavits are attached as Exhibits D and Exhibit E
10. Support
JOSEPH ANDRE DAVIS, Respondent, is obligated to support the children and should be
ordered by the Court to make payments for the support of the children and to provide medical
child support in the manner specified by the Court.
JOSEPH ANDRE DAVIS II, a child the subject of this suit, is enrolled under chapter 25
of the Texas Education Code in an accredited secondary school in a program leading toward a
high school diploma and is complying with the minimum attendance requirements of subchapter
:::: 2:::: ::
Original Petition In Suit Affecting The Parent Child Relationship Page 3
C of chapter 25 of the Education Code. The Court is requested to order that payments for the
support of this child be continued until the end of the month in which the child graduates from
high school.
11. Request for Temporary Restraining Order
Petitioner requests the Court to dispense with the necessity of a bond, and Petitioner
requests that Respondent be temporarily restrained immediately, without hearing, and after
notice and hearing be temporarily enjoined, pending the further order of this Court, from:
Disturbing the peace of the children or of another party.
Withdrawing the children from enrollment in the school or day-care facility where the
children are presently enrolled.
Hiding or secreting the children from Petitioner.
Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or
within the hearing of the children.
Consuming alcohol within the 12 hours before or during the period of possession of or
access to the children.
Canceling, altering, failing to pay premiums, or in any manner affecting the present level
of coverage of any health insurance policy insuring the children.
12. Request for Attorney's Fees, Expenses, Costs, and Interest
It was necessary for Petitioner to secure the services of Norman E. Lester, Jr., a licensed
attorney, to preserve and protect the children's rights. Respondent should be ordered to pay
reasonable attorney's fees, expenses, and costs through trial and appeal, and a judgment should
be rendered in favor of this attorney and against Respondent and be ordered paid directly to
Petitioner's attorney, who may enforce the judgment in the attorney's own name. Petitioner
33::53::33:: EE :2 2222222 2222 mE:::!
Original Petition In Suit Affecting The Parent Child Relationship Page 4
requests postjudgment interest as allowed by law.
13. Prayer
Petitioner prays that citation and notice issue as required by law and that the Court enter
its orders in accordance with the allegations contained in this petition.
Petitioner prays that the Court immediately grant a temporary restraining order
restraining Respondent, in conformity with the allegations of this petition, from the acts set forth
above, and Petitioner prays that, after notice and hearing, this temporary restraining order be
made a temporary injunction.
Petitioner prays that, on final hearing, the Court enter a permanent injunction enjoining
Respondent, in conformity with the allegations of this petition, from the acts set forth above.
Petitioner prays for attorney's fees, expenses, costs, and interest as requested above.
Petitioner prays for general relief.
Respectfully submitted,
N.E. Lester, Jr.
3730 Kirby Drive, Suite 1200
Houston, Tx 77098
Tel 713-660-6839
Fax 713-664-0395
By: N. E. Lester. JL.
Norman E. Lester, Jr.
State Bar No. 12236650
HouTxLawyer@aol.com
Attorney for Petitioners
:::
Original Petition In Suit Affecting The Parent Child Relationship Page 5
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this October 8,2014
Certified Document Number: 62660436
Chris Daniel DISTRICT CLERK
HARRlS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated
docmnents are valid. H there is a question regarding the validity of this document and or seal
ple as e e-mail support@hcdistrictclerk.com
2014-58410 / Court: flit!} '
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Certified Document Number: 62660439
Chris Daniel, DISTRICT CLERK
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In accordance with Texas Goverrunent Code 406.013 electronically transmitted authenticated
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County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
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Witness my official hand and seal of office
this October 8,2014
Certified Document Number: 62660441
Chris Daniel DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please a-mail support@hcdistJictclerk.com
2014-5841 0 / Court: •
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0 ~'. • •••
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. II . .".. ' n:-'- T'j 3..
I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this October 8,2014
Certified Document Number: 62660442
Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
~+l-2{)449~68;47-AM--------------
Chris Daniel - District Clerk
Harris County
Envelope No: 2743873
2014-58410 / Court:?-t1.tS By: AGUIRRE, ANAIS
Filed: 10/7/20149:58:17 AM
NO. _
p.?
IN THE INTEREST OF § IN THE DISTRICT COURT
§ {j\50
J.A.DAND J.A. D. § JUDICIAL DISTRICT
§
§
CHILDREN § HARRIS COUNTY, TEXAS
NOTICE OF HEARING FOR TEMPORARY ORDERS
Notice is given to Respondent, JOSEPH ANDRE DAVIS, and Respondent is ORDERED
to appear in person before this Court in the courthouse at the Civil Courthouse, 201 Caroline,
Houston, Texas, on ~. \\', 2a~ at ~·.{)O.ttr'The children the subject of this suit are
JORDAN ADRIANNA DAVIS and JORDAN ADRIANNA DAVIS. Petitioner is FLOYD
DANIEL LOPEZ and IRMA OLGA JIMENEZ.
The purpose of the hearing is to determine whether the temporary injunction prayed for
should be granted to enjoin Respondent from the following:
Disturbing the peace of the children or of another party.
Withdrawing the children from enrollment in the school or day-care facility where the
children are presently enrolled.
Hiding or secreting the children from Petitioner.
Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or
within the hearing of the children.
Consuming alcohol within the 24 hours before or during the period of possession of or
access to the children.
Canceling, altering, failing to pay premiums, or in any manner affecting the present level
of coverage of any health insurance policy insuring the children.
Notice of Hearing for Temporary Orders Page 1
IT IS FURTHER ORDERED that any authorized person eighteen years of age or older
who is not a party to or interested in the outcome of this suit may serve any citation, notice, or
process in this case.
SIGNED on
----- OQI - 829M
~.,
Associate ESIDING ~
APPROVED AS TO FORM ONLY:
N.E.Lester, Jr.
3730 Kirby Dr., Suite 1200
Houston, Tx 77098
Tel 713-660-6839
Fax 713-664-0395
By: Norman E. Lester. Ir.
Norman E. Lester, Jr.
Attorney for Petitioner
State Bar No. 12236650
HouTxLawyer@aol.com
Notice of Hearing for Temporary Orders Page 2
Certified Document Number: 62660440 - Page 1 of 2
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I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this October 8,2014
Certified Document Number: 62660440
Chris Daniel DISTRICT CLERK
HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
pIe as e e-mail support@hcdistrictclerk.com
CAUSE NO. 201458410
RECEIPT NO. 0.00 ATY
********** TR # 82367674
PLAINTIFF: LOPEZ, FLOYD DANIEL In The 245th
vs. Judicial District Court
DEFENDANT: DAVIS, JOSEPH ANDRE of Harris County, Texas
245TH DISTRICT COURT
Houston, TX
PRECEPT
THE STATE OF TEXAS
County of Harris
TO ANY SHERIFF OR CONSTABLE OF TEXAS
Or Other Authorized Person
YOU ARE HEREBY COMMANDED to serve,
DAVIS, JOSEPH ANDRE
with the accompanying certified copy of ORDER SETTING HEARING and copy of
NOTICE OF HEARING FOR TEMPORARY ORDERS
HEREIN FAIL NOT, but of this notice make due return as the law directs.
ISSUED AND GIVEN UNDER MY HAND AND THE SEAL OF SAID COURT , at Houston, Texas, this
8th day of October, 2014.
. `` ``~;;
.
Issued at request of: ./ :::;t;-..u·····.. ·· .. ······15'"\c\
fo....
(10"· CHRIS ``le.cf Clerk
LESTER, NORMAN EUGENE JR. Harris County, Texas
: o: : z:
3730 KIRBY DR SUITE 1200 :
. l-"(). \ .: -c
-i :
: 201 Caroline Houston, Texas 77002
HOUSTON, TX 77098 (P.O. Box 4651, Houston, Texas 77210)
\ `` ``~./
Tel: (713) 660-6839 -,-....................
,0* ~ ....
Bar No.: 12236650 GENERATED BY: ROQUEMORE, AUDREY MA 73Z//9941839
OFFICER/AUTHORIZED PERSON RETURN
Came to hand at o'clock .M., on the day of
Executed at (address) in
IJ.
County at o'clock --6-11-,,---. M., on the Ie) day of o"..;o~,
``~ by delivery to the within named _
THE ACCOMPANYING
To certify which I affix my hand officially the day of
Fee: $ _
of County, Texas
By _
Deputy
On this day, _________________________________________________ , known to me to be the person whose
signature appears on the foregoing return, personally appeared . After being by me duly sworn,
he/she stated that this notice was executed by him/her in the exact manner recited on the
return.
SWORN TO AND SUBSCRIBED BEFORE ME, on this day of
Notary Public
N.INT.PRER.P ml~I~III~III~II~nllll``II~mllli
No. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT
OF
J. A. D. HARRIS COUNTY, TEXAS
A CHILD 245TH JUDICIAL DISTRICT
Respondents affidavit
On July 18, 2014,1 was served with a Citation and a Restraining Order issued by Chris
Daniel-District Clerk, Harris County at the request of Lester, Norman Eugene Jr. an attorney for
the parents of my two children, Joseph Andre Davis II D.O.B. October 30,1995 (18) and Jordan
Adrianna Davis D.O.B. July 26, 2002 who was 11 year of age at the time the Citation and
Restraining Order were signed) deceased mother, Sandra Lopez. They were both signed on July
3, 2014 by Associate Judge Cooper.Both the Citation and the Restraining Order name Sandra
Lopez deceased as the plaintiff and myself (Joseph Andre Davis) as the defendant. The Citation
was claimed to have been filed on June 30,2014 by Sandra Lopez whose death occurred on May
24, 2014 which is more than one month prior to the date of June 30, 2014.
The instruments attached to the citation the deceased Sandra Lopez was alleged to have
filed in the 245th Judicial District Court requesting Modification of Child-Parent Relationship
consist of a copy of a Child Support Review Order dated November 17, 2003 where a routine
negotiation conference was held pursuant to Texas Family Code Chapter 233 and Temporary
Restraining Order, and Order Setting Hearing for Temporary orders.
The Citation served to me on Friday, July 18, 2014 included in it the statement "YOU HAVE
BEEN SUED, you may employ an attorney. If you or your attorney do not file a written answer
with the District Clerk who issued this citation by 10:00 a. m. on the Monday next following the
expiration of 20 days AFTER you were served this citation and petition a default judgment may
be taken against you".
I spent almost the whole night and most of the following morning trying to find an attorney.
Every attorney I contacted said that they could not represent me on such short notice, but I
returned back to his court regardless on Thursday, July 24, 2014. Without batting an eye lid the
judge immediately stripped me of the Managing Conservatorship of my 11 year old child Jordan
Adrianna Davis. He gave me and her maternal grandparents, Floyd Daniel Lopez and Irma Olga
Jimenez rotating equal visitation.
After that he rescheduled me to come back at 1:30 p.m. on Wednesday, August 13 which just
happened to be the grandparents’ rotation turn. At the end of the legal hearing which had
previously been presented to me as “mediation", I had been stripped of my parental assumption.
No legally documented evidence or legal proof such as police reports or CPS reports or any other
legal reports or documents from anywhere or any persons at all were ever presented. Floyd
Daniel Lopez, Irma Olga Jimenez, my two sons whom they had somehow managed to entice or
coerce to make false accusations of abuse that were false and erroneous..
Floyd Daniel Lopez and Irma Olga Jimenez also coerced and enticed my son John Daniel to illegally
falsify documents claiming to be the legal guardian of Jordan Adrianna Davis in order to gain access to
her share of Sandra's life insurance and to claim money from the Teachers Retirement Association, and
MetLife designated to contribute towards her support.
There has never been any documented legal evidence to show or prove that Managing Conservatorship of
my child should have been revoked from me or that JAD should have been removed from my home or
that her maternal grandparents should have been given Temporary Managing Conservatorship because
she was in imminent emotional or physical danger.
The unambiguous mandate of the Texas Family Codes is that a non-parent cannot be awarded Managing
Conservatorship of a child in lieu of a parent unless a preponderance of clear and convincing evidence
demonstrate that the parent as a Managing Conservator would significantly harm the child physically or
significantly harm the child emotionally. Even if Irma Olga Jimenez and Floyd Daniel Lopez did have
standing to sue for Temporary Managing Conservatorship (which they did not) they still would fail to
meet the burden of proof in a fair and just court decision (which it was not).
The Family Code mandates that in the absence of a history of domestic violence, a parent "shall" be
appointed sole Managing Conservator. l reiterate, I do not have a history of any type of violence,
When Sandra first found out just how ill she was, by mutual agreement, we decided that it was in the best
interest of Jordan that I take her into my home until she was able to care for her again. I drove Jordan to
and from school during that time. Sandra died while Jordan was in my care and possession. I immediately
informed Irma Olga Lopez that Jordan would be living in my home on a permanent basis. I allowed
Jordan to return back to the grandparents’ home and stay for a week or more after the death of Sandra to
finish out the rest of her school year and to be with the grandparents some because all had been recently
bereaved by Sandra's death. (They didn't send her to school at all)
The attorney for the grandparents reminded the judge that he had forgotten to schedule me for
mediation with the case no. 199709681 grandparents. The judge then told me that I would be scheduled
for mediation. To add insult to injury, after the fact that he had already removed my child from my home
he said that he was also sending an attorney and an investigator he had already chosen beforehand to
inspect my home and interview my other children.
The Citation lists Sandra Lopez as the plaintiff, the attached instrument list Floyd Daniel Lopez and Irma
Olga Jimenez as the petitioners that fact is not listed on the citation. At the time of Sandra Lopez's death
on May 24, 2014 she did not have a pending suit for Modification of Parent-Child Relationship for them
to intervene in. In actuality, Irma Olga Jimenez and Floyd Daniel Lopez never petitioned the court at all
for Temporary Managing Conservatorship. their attorney and bogusly claimed that Sandra had sued and
are using her child support case's cause No. 9709681 then they attached their alleged petition to it. I have
exhibit's of all of this information and will provide it for the court.
Floyd Daniel Lopez and Irma Olga Jimenez had no legal standing to petition the court for temporary
Managing Conservatorship yet the Associate Judge knowing allowed them to do so by alleging that they
were intervening in a pending suit Sandra Lopez filed prior to her demise and then attaching their
information onto it.
While they did not provide any proof or evidence to the court to support the allegations in the petition and
affidavits they filed because there was none, the Associate Judge allowed Floyd Daniel Lopez, Irma Olga
Jimenez and my own sons John Daniel Davis and Joseph Andre Davis II whom they had somehow
persuaded or coerced to be their witnesses to take oaths to tell the truth to get on the witness stand and
purger themselves with their character assassinations of me by making unsubstantiated allegations and
obvious lies of child abuse and family violence against me.
This travesty did jeopardize my job and my chance for the promotion. I, too, am a public servant,
false documentation of domestic abuse leading to the removal on August 13, 2014 of my child from my
home was very harmful to me. the grandparents were awarded joint managing conservator ship base upon
those false allegations of abuse. the 245th district court determined I had a history of family violence and
removed my child from my home for a month and a half and she returned back to me on October 16,2014
when if was informed that case no. 199709681 was dismissed. JAD was already adjusted into her life in
her new household. JAD and I were always close, but during the time she was living with me our bond
grew closer. .
Floyd Lopez stated in the Associate Judge's court how much he dislikes me and has proven to be bitter
and vindictive because I never married his daughter.
I already knew how much he vehemently disliked me because he has spent almost all of his spare time in
an effort to turn my children against me and to stir up as much conflict as he possible can between us.
Their attorney did not share any information as to the charges he planned to claim against me until we
were in the court room and the false allegations begun.
I have no history of family violence or violence of any kind against anyone. I have no police record for
any type of violence. Floyd Lopez or someone in the Lopez family has already filed a report of child
abuse against me once in 2006 which was determined to be false and unfounded by the investigator and
the case was closed.
A New suit which was alleged to have been filed on October 7, 2014, the
Notice of Hearing for Temporary Orders was signed by Judge Moore's Associate Judge Cooper on
October 8, 2014. Petitioner's sworn affidavits are dated October 4, 2014 was scheduled a hearing date of
October 16, 2014 9:00 A.M. on the same date and time Judge Moore had reset Petitioner's de novo
hearing to be heard. There was not a notice of a non- suit dismissal of the previous case served with the
citation accompanying the new suit filed. No where on the docket for that time and date shows the
Petitioners as having a temporary orders hearing scheduled on that date.
I was served a citation with the Petitioner's NOTICE OF HEARING.
Texas Rules of Civil Procedures Rule 162 Dismissal or Non-Suit "At any time before the
Plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may
dismiss a case or take a non- suit. However, once a judge announces a decision that adjudicates
a claim. That claim is no longer subject to the plaintiffs right to non-suit. The Plaintiffs, Floyd
Daniel Lopez and Irma Olga Jimenez petition Cause No. 9709681 had already been fully tried
and decided. According to the rule of law that case cannot be non-suited and dismissed without
prejudice.
Texas Family Code 107.021 Discretionary Appointments, (a-1) (b) "In determining to make an
appointment under this section, the court (1) shall (A) give consideration to the ability of the parties
to pay reasonable fees to the appointee; and balance (B) the child's interest against the cost to the
parties that would result from an appointment by taking into consideration the cost of available
alternatives for making an appointment. (2) may make an appointment only if the court finds that the
appointment is necessary to ensure the determination of the best interest of the child unless the
appointment is otherwise required by this code. Section 107.022 "
I Objected because I cannot afford to pay attorney's fees for an amicus
attorney/guardian ad litem especially one where there is no proof that her services are even needed
or required. No hearing has been held in support of the allegation that she is required but the trial
court abused its discretion and appointed only because Plaintiffs attorney requested one because it
would be in the "Best Interest" of the Plaintiffs Floyd D. Lopez and Irma O. Jimenez.
See TEX. FAM.CODE. ANN. § 102.003(a)(9); In re M.J.G., 248 S.W.3d at 757‐59; see also Troxel,
530 U.S. at 68‐69, 120 S. Ct. 2054 (presumption that fit parents act in the best interest of their
children); see generally In re Pensom, 126 S.W.3d at 255 (considering limitations of intrusion
into the parent‐child relationship in the “These parental interests are a fundamental right
protected by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
This matter was mediated by the HA RRIS COUNTY DOMESTIC RELATIONS OFFICE,
ALTERNATIVE DISPUTE RESOLUTION DIVISION on November 25,2014, by mediator Kathleen A.
Gasner. The parties intend this agreement to be for final orders and this agreement resolves all
temporary issues. This is the actual agreement signed by myself and grandparents.
My Prayer is that all relief prayed for by Petitioners, Floyd Daniel Lopez and Irma Olga Jimenez
be denied and that I, Joseph Andre Davis, be granted all relief requested.
Respondent prays for attorney's fees, expenses and costs as requested above.
Respondent prays for general relief.
I certify that I have this day served copies of this petition on the respondent judge and all other
parties to the action in the trial court.
JOSEPH ANDRE DAVIS
3323 Rose Trace Drive
Spring, Texas 77386
TEL: 832-660-7207
By:___joseph andre Davis_________________________________
JOSEPH ANDRE DAVIS, PRO SE jdavis1103@hotmail.com
.
APPENDIX G
FIRST CLAS$l
LOPEl. FLOYD DANIEL
I
RETURN SERVICE [us
PRESORTED I
BE ADVISED ON 12/19/2014 THE *
REQUESTED I POSTAGE
PAiD
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F'O``t~Cit~}l``~fi~f..1C7~I\}IT'-'f CJC'(;~)F:f-~((@~
support arrearages or retroactive support judgments as of the specified ~ Tbe judgment for this amount is a
cumulative judgment. ''"'{@
Ajudgment is granted against JOSEPH ANDREW DAo`` in favor of the OFFICE OF THE ATIORNEY
GENERAL in the amount of 10.00, with interest as provided ~e law of: the State of Texas, at the rate of 6% per
annum; for collection and distribution according to Jaw. (Y
NOTI~TO OBUGOR
Any judgment(s) rendered herein is not an~lmem debt and the entire judgment is now due and owing. The
OFFICE OF THE ATTORNEY GENERAL ~e whatever enforcement remedies deemed necessary including any
i~.
remedies required by federal or state laws ~ this judgment. even if regular periodic payments on this judgllllcot are
being made. ~
JOSEPH ANDREW DA YIS on notice that shOuld he fail to pay current ~hi1dand medical support, or
toward the arrearage as ordered ~ the OFFICE OF THE ATTORNEY GENERAL may pursue an action to suspend
any or all licenses he may bave~
Pursuant to T`` Code § IS7.269, the Court retains jurisdiction over this matter until all current support
and all support arreara ~IUding interest and any applicable fees and costs, have been paid.
~
~
MOOMCATION OF SUPPORT ORDER
It is FOUND that since rendition of the support and health care coverage order entitled AGREED ORDER IN
SUIT FOR MODIFICATION OF CHILD SUPPORT OBUGATION signed on 312812007 there has been a material and
substantial change in the circumstances of the children or parties, or it has been three years since the order was rendered
or last modified and the monthly amount of the child support award under the order differs by~er 20 percent or $100
from the amount that would be awarded in accordance with the child support guidelines, or ~xisting order for child
support does not include health coverage for the child u required under TFC § 154.182, ~ warrants the following
modification of the existing support order. (~
FINDINGS REGARDING MEDICAL SUPPORT AND CHILD Qtrt.~
~ "RT OBUGATIONS
,,0
It is FOUND: ~
JOSEPH ANDREW DAVIS's gross monthly resources ~i;l66.46 .
Reasonable cost, based upon 9% of JOSEPH ANDREw;, f. 's gross monthly resources is S3 74.98.
JOSEPH ANDREW DA VIS is obligated to provide sup or the following:
~
(A) The number of children before the court' - -.
(B) The number of minor children not befo`` court residing in the same household with
JOSEPH ANDREW DAVIS is - 2 -'e"~2
(e) The number of children not bef~ urt for whom JOSEPH ANDREW DA Y1S is obligated by
``urt order to provide m`` rt, and who are not counted under Paragraph (A) or (B) is
(0) The number of children not ~ the court for whom JOSEPH ANDREW DA YIS is obligated by
8 court order to provide.~ support, including 1hose counted in (C) above, and who are not
counted under Para``) or (B) is -1 -.
`` .
SANDRA. LOPEZ pmvide~ insurance coverage for - 0 - other minor children.
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CHILD SmoIT RlVIIW ODu (COImIMATION OJ AUlAJlSAND MODlDCAlIOI'I)
MEDICAL SUPPORT
(MORE THAN ONE OmON MAY BE APPROPRIATE)
o 1. Health insurance is available or is in effect for the cbildren through the following parent's employment or
membership in a union, vade association, or other organization at a reasonabJe(cost to JOSEPH
ANDREW DAYIS: . r-~
o SANDRA. LOPEZ at an actual cost oU per month. ~@
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JOSEPH ANDREW DAYIS at an actual cost of $ ~onth.
~
X 2. Health insurance is not available under option # 1, or good cause·/ vary nom # 1. and bealth
insurance is avaUable to the following parent from anotber so~ ~ reasonable cost to JOSEPH
ANDREW DAYIS: 0 0
o SANDRA. LOPEZ at an aetual cost ofs ~month.
X JOSEPH ANDREW DAYIS at an actual cost of $14o.~"%nth.
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o 3. No parent bas access to private heahh insurance at a ~able cost or good cause exists to vary from #1
mR m
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o 4. Notwithstanding the findings made above, it i~UN:othat good cause exists to deviate from the
statutory priorities in ordering health •.,••`` ~or the following reasoD(s):
``.
It is tiJrtber FOUND dial tile fo7.~.g
t(~
healtb -
SUPPORT FINDINGS
are ill tile best ••••••• ortlle children.
It is FOUND: ~
(1) the net resources O~H ANDREW DAYIS per month are $3,21J.12;
(2) the percentage ~d to JOSEPH ANDREW DAYIS's net resources for child support is 19%.
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CIIILD S1JPI'OIlT REvIIW 0Jm1R (CONFllMATION OF Aau.uIs MD MoDifICATION)
HEALTH INSURANCE TO BE PROVIDED BY OBLIGOR
JQSEPHANDREWDAYIS
As additional child support, JOSEPH ANDREW DA YlS is ORDERED to obtain, within 1S days after entIy of this
order, health insurance for each child subject of this suit that covers basic health care services, including usual pbysician
services, office visits, hospitalization. laboratory, x-ray, and cmcrgcncy services through: ~
__ JOSEPH ANDREW DAYIS's employmentor membership in a union, ~i~
-s or other
organization. ,~
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JOSEPH ANDREW DAYIS is ORDERED to maintain such health ~ce in full force and effect for any child,
subject of this suit, until the first of the following events occurs for the ``
1. the child reaches the age of eighteen years or graduates from ~- hiOJl,~boo~whichever occurs later, subject to the
provisions for support beyond the age of eighteen years . \ low;
``.
2. the child marries; ?~
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3. the child dies; ~
4. the child enlists in the armed farces of the U``S and begins active service as defined by section 101 of
title 10 of the United States Code; or ~
s. the child's disabilities are otherwise remo~ for general purposes.
``
If the child is eighteen years of a~ not graduated from high school, IT IS ORDERED that this obligation
shaUnot terminate but shan continue f~ ~ as the child is enrolled
1. under chapter 2S of the T4cation Code in an accredited secondary school in a program leading toward a
high school diploma ~ section 130.008of the Education Code in courses for joint high school and junior
college credit and i``1ying with the minimum attendance requirements of subchapter C of chapter 2S of the
Education Code~
2. on a full``S in a private secondary school in a program leading toward a high school diploma and is
comply~ the minimum attendance requirements imposed by that school.
JOSEPH ANDREW DAYIS is ORDERED to convert any group insurance to individual coverage for each child
within IS days of termination of his employment or other disqualification of him from the group insurance.
JOSEPH ANDREW DAYIS is ORDERED to exercise any conversion options in such a manner that the resulting
insurance equals or exceeds that immediately before the conversion.
JOSEPH ANDREW'DA YJS is ORDERED to furnish SANDRA LOPEZ and the Office oftbe Attorney General
Child Support Division a IrUe and correct copy of the health insuranQCpolicy or certification and a schedule of benefits
within 30 days of the signing of this order. JOSEPH ANDREW DAVIS is ORDERED to furnish SANDRA LOPEZ the
in8Ul'll1Cecards and any other fonns DeceSSll')' for use of the insurance within 30 days of the signing of this order.
JOSEPH ANDREW DA JlIS is ORDERED to provide, within three days of receipt by ~to SANDRA WPEZ
any insurance checks, other payments, or explanations of benefits relating ~ any medical``S for the children that
SANDRA LOPEZ paid or incurred. rt:J
Pursuant to Texas Insurance Code §1504.051, it is ORDERED that if Joii!fHo'~
ANDREW DAVlS is eligible for
dependant health coverage, but fails to apply to obtain COVc:rBge for the chil~ insurer shall enroll the children on
application of SANDRA LOPEZ or others as authorized by law. ~ 'V
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In accordance with Texas Insurance Code .§§1204251, 120``and 1504.055(a), it is ORDERED that
SANDRA WPEZ, at her option, or others as authorized by law,. claims for health-care expenses directly with the
insunmce carrier, and receive payments from the insurer, wif!1`` whom coverage is provided for the benefit of the
children. Further, for the sole purpose of§§ 1204.251 an``S2 of the Texas Insurance Code, the party who is not
carrying the health insurance policy is designated the ~Dg conservator or possessory conservator of the children.
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CIIJLD SllPPOBT IUVmW ORDIil (COIUllMAnOl'l or ARIIIAIS AND MODJFlCATlOl'f)
ADDmONALBEALTB CARE EXPENSES
Pursuant to Texas Family Code §154.183(c), additional healthcare expenses to be allocated between the parties
include the following:
(1) any reasonable and necessary health care expenses of the children, including vision and dental expenses, that
are not reimbursed by insurance; and
(2) any amounts paid by either party as deductibles or copayments for health care -...••
~s for the children.
F``:
Additional health care expenses of the children are allocated as follows: ~ Q
, o:if
SANDRA. LOPEZ is ORDERED to pay ~% and JOSEPH ANDREW IJfi1S is ORDERED to pay ...iQ...% of all
additional health care expenses if. at the time the expenses are incurred, the ~ to provide health insurance for
the children is providing health insurance as ordered. ;:::;'" -- --- --
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The party who incurs a health care expense on behalf of~e. is ORDERED to submit to tho non-incurring
I()
party(ies) all forms. receipts. bills, and statements reflecting the ---- care expenses within 30 days after he or she
receives them. The party shall itemize those expenses for wh~yment or reimbursement is sought Each non-
incurring party who is also a parent is ORDERED to pay ~ ber share or percentage of the health care expenses either
by paying the health care provider directly or by reim~iJlg the incurring party within 30 days after the non-incurring
party receives the f~s. receipts. bills. or statem~)
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(~ WARNING .
A parent ordered to pJ"OYide1I``urance, or to pay addltloaaJ child support for tile cost ofllealtb
hllaraDce who lalla to do 10 Is liable ~OO% of aecasary medical e:lpeDHI of tile cbUdrea, wltbout reprd CO
wbetller tbe espe.la woald have ~ paid If llea1tb iIIIunace ••ad beea pl'O¥ided, aad tile cost of healtll
p~
ialunace premiuml or coatri~al, If _ay, paid oa belaalf of1lle chndreD.
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CBILD SVPf01lT REVIEW OIlDD (CoNJIIJlM.\TION or AlIuAJIs AND MODJIIICATJON)
CURRENT CIIll.J) SUPPORT
JOSEPH ANDREW DAVIS is ORDERED to pay SANDRA. LOPEZ CUlTCIlt
child support of $610.00 each month
beginning the F day of JfllllIIUJ'. lOU, payable on or before that date and on or before the same day of each month
thereafter until the fast month fOllowingthe date of the earliest occurrence of one of the events specified below:
I. any child reaches the age of eighteen years or graduates &omhigh school, wbich~ occurs later, subject to
the provisions fOrsupport beyond the age of eighteen years set out below; ~
2. any child marries; @
3. any child dies; ((~
4. any child enlists in the armed forces of tile United States and begins activ~Uce as defmed by sections 101
oftitlc 10 of the United States Code; or '0f ¢
5. any child's disabilities are otherwise removed for general purposes.. ~
Thereafter, JOSEPH ANDREW DAVIS is ORDERED to pay SANDRA. LOP~d support of U1S.00 each month
beginning the same day of the first month following the last month in wh~port was payable according to the
Q
preceding paragraph, payable on or before that date and on or bef;t:ore e day of each month thereafter until the next
occurrence of one of the events specified above for the other/anoth· ld.
':t ~
MC046S ,tJf
P.O. Box 12017 ~
Austin, TX 78711-2017 0 ~
in addition to reporting the change(s) to the other parties and the Court. «::Sf
REVIEW 0 ~
Pursuant to 42 USC 666(a)(10). a parent subject to a child `` order, at least every three years, bas the right
to request a review of the ordered child support amounts by con~"'Jthe CHILD SUPPORT DIVISION of the OFFICE
OF THE ATTORNEY GENERAL. 0 ~.
AGREEDORDt~UIREMENTS
For all parties agreeing to this order, an APPR~ 'OF CHILD SUPPORT REVIEW ORDER and WAIVER
OF SERVICE AND HEARING is included in this ~
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CIIIW SUPPORT RIVIIW ORDBa (CororDIMAllON or AaB&\ISAJID MODIPlCATION)
INFORMATION PURSUANT TO TEXAS FAMILY CODE 1105..006
Court: U5TH JUDICIAL DlSTRlCT HARRIS County, Texas
Cause Number: 9709681
PRIMARY JOINT MANAGING or MANAGING CONSERVATOR I OBLIGEE INFORMATION:
Name: SANDRA LOPEZ
Residence Address:
Mailing Address (if different):
23918 SPRING TOWNE DR
SPRING TX77J73-6J62-18
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Social Security Number: 637-05-JCXX% ~
Driver License Number: 14768ux ~
Home Phone: oq
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Employer: SPRING ISD o~
Employment Address: 16717 ELLA. BLVD ~
HOUSTON TX 77090-4213-J7 ~
Work Phone: o{f!f» .
JOINT MANAGING or POSSESSORY CONSERV ~ I OBLIGOR INFORMATION:
Name: JOSEPH.ANDREWDAJIJS
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ASSOC
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CIULD SURORT RIVIIWOIDO (C0IVIDIA11Ol'I 01' AUlAIS~ MoDIFICAT1ON)
VIII. CONSTITUTIONAL RIGHTS OF PARTIES TO CHILD
CUSTODY LITIGATION
A. Due process of law
1. The right to conceive and rear a child is a basic civil right,
an essential constitutional right far more precious than
property rights
Stanley v. Illinois (1972) 405 U.S. 645
2. The state has no authority to dictate to parents the manner
in which they should rear their children
Troxel v. Granville (2000) 530 U.S. 57, 120 S. Ct. 2054,
147 L. Ed. 2d 49
Rich v. Thatcher (2011) 200 Cal. App. 4th 1176, 132
Cal. Rptr. 3d 897 (to overcome presumption that a fit
parent will act in the best interest of grandchild,
grandparent has burden of proof, and must show by clear
and convincing evidence that denial of visitation would
not be in the grandchild¶s best interest, i.e., would be
detrimental to grandchild. Preponderance of evidence
standard is not sufficient to adequately protect a fit sole
surviving parent¶s federal due process right to raise a
child)
Clear and Convincing Proof
A standard applied by a jury or by a judge in a nonjury trial to measure the probability of the truthfulness
of particular facts alleged during a civil lawsuit.
Clear and convincing proof means that the evidence presented by a party during the trial is more highly
probable to be true than not and the jury or judge has a firm belief or conviction in it. A greater degree of
believability must be met than the common standard of proof in civil actions, preponderance of the
evidence, which requires that the facts more likely than not prove the issue for which they are asserted.
The standard of clear and convincing proof—also known as "clear and convincing evidence"; "clear,
convincing, and satisfactory"; "clear, cognizant, and convincing"; and "clear, unequivocal, satisfactory,
and convincing"—is applied only in particular cases, primarily those involving an equitable remedy,
The Constitutional Right to Be a Parent
The United States Supreme Court has stated: "There is a presumption that fit parents act in their children's
best interests, Parham v. J. R., 442 U.S. 584, 602; there is normally no reason or compelling interest for
the State to inject itself into the private realm of the family to further question fit parents' ability to make
the best decisions regarding their children. Reno v. Flores, 507 U.S. 292, 304. The state may not interfere
in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000)
Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children." --Troxel v. Granville (530 U.S.
2000, or 120 S. Ct. 2054, or also, 147 L. Ed. 2d 49)—
Cause No. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT
JOSEPH A. DAVIS AND
JORDAN A. DAVIS HAR1tlSCOUNTY,TEXAS
CHILDREN 24Sth JUDICIAL DISTRICT
IATED SETTLEMENT AGREEMENT
FOR TEMPORARY ORDERS
This matter was mediated by the H RRIS COUNTY DOMESTIC RELATIONS OFFICE, ALTERNATIVE
DISPUTE RESOLUTION DIVISI N on November 25,2014, by mediator Kathleen A. Gasner. The parties
intend this agreement to be for fin 1 orders and this agreement resolves all temporary issues.
The parties to this agreement are t e following:
FATHER: ~(``````````U-L- ~ _
Email address: -----=--+J-=``-'--'-"``````-="'--'-L-``.:-.L--------
Email Address:``;L1....lJ.-L..!.L4~;...I£..~!!!IU..~Y,P``=--.:...I...uL-~ _
CHILDREN:
Name: Joseph Davis
Date of Birth: October 3 , 1995
Name: Jordan A. Davis
Date of Birth: July 26, 2 02
Cause No.
The parties have agreed to the follo mg:
POSSESSION
Possession shall be as agreed upon y the parties, and, in the absence of mutual agreement, shall be as follows:
Maternal grandparents shall pick u Jordan from the Father's residence at 7 a.m. on the first day of Father' s
work week and take the child to sc 001 when school is in session. Father shall take the child to the maternal
grandparents' residence at 5:30 a. . on the second da~ of his work week and the grandparents shall then take
Jordan to school. Each work week alternates as follows: Monday and Wednesday; Tuesday and Thursday;
Wednesday and Friday; Thursday nd Saturday and Friday and Sunday. On the date of this agreement, Father's
work week is in the Monday and ednesday work week cycle. Further, on the work week wherein the maternal
grandparents take Jordan to school on Thursday, the grandparents shall have possession of the child at the time
school recesses on Thursday and t ke Jordan to school on Friday and pick up the child from school when school
recesses on that Friday and return ordan to the Father's residence at 6 p.m. on the Sunday immediately
following.
Father shall forward his work wee calendar to Petitioner's attorney and the amicus attorney by December 1,
2014.
For Thanksgiving, 2014 the mate al grandparents shall have possession of Jordan beginning at 6 p.m. on
November 27, 2014 and ending at p.m. on the Sunday, immediately following, November 30, 2014.
For Christmas 2014, the maternal randparents shall have Jordan beginning at 6 p.m. on December 25,2014 and
ending at 6 p.m. on December 28, 014.
For Thanksgiving and Christmas, he maternal grandJarents shall pick up and return the child to the Father's
residence.
The possession schedule outlined bove shall be in effect for the 2014-2015 school calendar year.
I
OTHER AGREEMENTS
The maternal grandparents may tr nsport Jordan to her softball practices and games as long as Jordan has
passing grades and passes STAR . If Jordan is not passing then she cannot participate in softball.
Father shall contact Dr. Sam J. B ser on or before De1cember6, 2014 and follow any and all recommendations
made by Dr. Beser. The Father an maternal grandparents shall cooperate with the therapist by attending any
appointments and following the t erapist's recommendations.
I
Petitioners' attorney shall draft th Temporary Orders. Petitioner's attorney shall pass the Temporary Orders
hearing set for December 3,2014
Petitioner's attorney shall send th ~proposed Order td Father via email. If Father does not approve sam~('-~"
" I
Petitioner's attorney shall notify ather of the entry date. / \\L/
\
NO. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT
J.A.D. AND J.A.D.II 245TH DISTRICT
CHILDREN HARRIS COUNTY, TEXA S
RESPONDENT'S ORIGINAL ANSWER AND MOTION TO DENY RELIEF IN
ORIGINAL PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP
Now comes JOSEPH ANDRE DAVIS, Respondent, who files this original answer and motion to
deny relief in Petitioners' ORIGINAL PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP. The
last three numbers of respondent's driver's license number are 056 . The last three numbers of
Respondent's Social Security number are 397.
I. Parties
JOSEPH ANDRE DAVIS, Respondent, is the biological father of the child the subject of this
suit, and Joint Managing Conservator. The biological mother of the child, SANDRA LOPEZ is now
deceased.
Petitioners FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ, are the maternal grandparents
of the child.
J. A. D. is a minor child who was 12 years old at the time the suit was filed.
J.A.D. II has reached the age of majority, but has not graduated from high school.
2. Denial of allegations
Respondent denies Petitioners' allegations in the petition to modify parent-child
relationship.
3. Motion to Deny Relief
a. Respondent is the biological father of the children the subjects of this suit, and a
Joint Managing Conservator. The biological mother of the children, SANDRA LOPEZ, is now deceased.
This ORIGINAL PETITION IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP was brought by
Petitioners FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ as a request to be appointed Custodial
Joint Managing Conservators of Respondent's minor child J. A. D. having the exclusive right to
designate the primary residence of the child. J.A.D. II has reached the age of majority, he has a room
in and has been given a key to Respondent's home. He has been asked and made welcome to live
there, also.
b. Neither the petition nor any attachments provide the court with adequate or
any facts to support (a) an allegation that if the child J. A. D. was in the sole custody of her father it
would endanger her physical health or significantly impair her emotional development, (b) the
allegation that appointing the Petitioners as Custodial Joint Managing Conservators is in the best
interest of the child; or (c ) the allegation that the Petitioners have standing to bring this suit.
c. Joseph Andre Davis, Respondent requests that the Court deny Petitioners request
to change the designation of the person having the exclusive right to designate the primary residence
of the child sought in the ORIGINAL PETITION IN SUIT AFFECTING THE PARENT CHILD RELATIONSHIP,
and refuse to schedule a hearing on that issue.
II. Request for Temporary Restraining Order
Joseph Andre Davis, requests that the Court deny Petitioners' request for Emergency
Temporary Restraining Order issued against Respondent. Neither the petition nor any attachments
provide the court with adequate or any facts at all that support the requirements for the issuance of a
temporary restraining order or any restraining order at all Under Title 4. PROTECTIVE ORDERS AND
FAMILY VIOLENCE; SUBTITLE B. PROTECTIVE ORDERS and TEXAS RULES OF CIVIL PROCEDURES, RULE
680.
Texas Rules of Civil Procedures, Rule 680, " No restraining order shal l be granted without
notice to the adverse party unless it clearly appears from specific facts or by the verified complaint
that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be
served and a hearing held thereon. Every temporary order issued without notice shall be endorsed
with the date of issuance, shall be filed forthwith in the clerk's office and entered of record; shall
define the injury and state why it is irreparable and why the order was granted without notice.
Texas Family Code Sec. 82.009. APPLICATION FOR TEMPORARY EX PARTE ORDER. (a) an application
that requests the issuance of a temporary ex parte order under Chapter 83 must:
(1) contains a detailed description of the facts and circumstances concerning
the alleged family violence and the need for the immediate protective order; and
(2) be signed by each applicant under an oath that the facts and
circumstances contained in the application are true to the best knowledge and belief
of each applicant.
Texas Family Code 83.001. REQUIREMENTS FOR TEMPORARY EX PARTE ORDER. (a) If the court finds
from the information contained in an application for a protective order that there is a clear and
present danger of family violence, the court, without further notice to the individual alleged to have
committed family violence and without a hearing, may enter a temporary ex parte order for the
protection of the applicant or any other member of the family or household of the applicant.
Joseph Andre Davis, Respondent requests the court to deny Petitioners
request to appoint a parenting facilitator. Jurisdictional requirement of prerequisites of standing in
grandparent access context serves to ensure that the statutory scheme is narrowly tailored so that a
parent's personal affairs are not needlessly intruded upon or interrupted by the trauma of litigation
by any third party seeking access . The supreme Court explains in Troxel v. Granville " So long as a
parent adequately cares for his or her children (i.e., fit parents) there will normally be no reason for
the State to inject itself into the private realm of the family to further question the ability of that
parent to make the best decisions concerning the rearing of that parent's children. Petitioners' have
not provided any evidence at all that either J. A. D. or Respondent is in need of a parenting facilitator,
nor have Petitioners provided any evidence at all that proves Respondent, Joseph Andre Davis unfit
as a parent and in need of a parenting facilitator.
Joseph Andre Davis, Respondent, requests that the trial court dismiss the
Petitioners' ORIGINAL PETITION IN SUIT AFFECTING THE PARENT - CHILD RELATIONSHIP. Petitioners
do not acquire standing under Texas Family Code Sec. 102.003 (a) (9) "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. There is no evidence that during
the relevant period or before that the Respondent or the deceased parent, SANDRA LOPEZ ever
totally abdicated their parental responsibilities to the petitioners at any time at all.
(a) (11) "a person with whom the child and the child's guardian, managing conservator , or
parent have resided for at least six months ending not more than 90 days preceding the date of the
filing of the petition if the child's guardian, managing conservator or parent is deceased at the time of
the filing of the petition." Legislative law states "presumably, a person residing with a parent and
child may care for the child over the course of time, yet that person would not have standing simply
by the care that would normally be exercised when residing in the same household with the parent
and child.
If the same degree of care and control and possession that would accompany living with the
parents were sufficient to establish standing under 102.003 (a) (9), the requirement that the parent be
deceased in section 102.003 (a) (11) would be without effect because standing would separately exist
under 102.003 (a) (9). We should not construe section 102.003 (a) (9) so broadly that section 102.003
(a) (11) is rendered meaningless."
Petitioners do not acquire standing under Texas Family Code Section 102.004 (a). In addition
to the general standing provided by section 102.003, a grandparent or another relative of the child
may file an original suit requesting managing conservatorship if there is satisfactory proof to the court
that: (1) the suit 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
custodian either filed the suit or consented to the suit. The Petitioners have not provided any proof at.
all, satisfactory or otherwise in support of their allegations that the child being in the sole custody of
her surviving parent had or would impair her physical health or emotional development nor does
Petitioners' suit have Respondent's consent nor had Petitioners obtained SANDRA LOPEZ'S consent
prior to her demise..
(b) "An original suit may not be filed by a grandparent or other person. However, the court
may grant a grandparent or other person deemed by the court to have had substantial past contact
with the child to intervene in a pending suit filed by a person authorized to do so under this
subchapter if there is satisfactory proof to the court that appointment of a parent as sole managing
conservator would significantly impair the child's physical health or emotional development." As
Respondent has previously stated, the Petitioners have not provided any proof at all in support of this
allegation and also, there was no pending suit for the Petitioners to intervene in.
Joseph Andre Davis, Respondent, requests that the Court deny Petitioners ORIGINAL
PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP, and refuse to schedule a hearing on that
issue. Respondent requests that the Court deny Petitioners' request for a Temporary Restraining
Order and the hearing on temporary orders. Joseph Andre Davis, Respondent, request that the
discovery of this suit is in compliance with Texas Rules of Civil Procedure, Rule 190.3, Level 2, (b) (1).
JOSEPH ANDRE DAVIS requests attorney's fees, all expenses, and all costs attributed to both
petitions brought by Petitioners' FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ . Respondent
JOSEPH ANDRE DAVIS prays the Court grant this motion.
Attorney's Fees, Expenses, Costs, and Interest
It was necessary for Respondent JOSEPH ANDRE DAVIS to secure the services of KAREN
TOUPARD ALEXANDER, a licensed attorney to prepare and defend the previous suit brought by
Petitioners both of which were filed frivolously or designed to harass Respondent, JOSEPH ANDRE
DAVIS.
If the parties are unable to reach an agreement on all issues, Petitioners FLOYD DANIEL LOPEZ
and IRMA OLGA JIMENEZ, should be ordered to pay reasonable attorney's fees, costs, expenses,
through trial and appeal be taxed as costs and be ordered paid directly to Respondent, who may
enforce the order in Respondent's own name as Attorney, Karen Toupard Alexander has already been
reimbursed for her services rendered. Respondent requests post judgment interest as allowed by law.
Prayer
Respondent JOSEPH ANDRE DAVIS, prays that all relief prayed for by Petitioners FLOYD
DANIEL LOPEZ and IRMA OLGA JIMENEZ be denied, and that Respondent be granted all relief
requested in this answer.
Respondent prays for attorney's fees, all expenses and all costs attributed to both suits
brought by Petitioners as requested above.
Respondent prays for general relief.
JOSEPH ANDRE DAVIS
3323 ROSE TRACE DRIVE
SPRING, TEXAS 77386
TEL: 832-660-7207
By:________________
JOSEPH ANDRE DAVIS, Pro Se
firsttank1@gmail.com
APPENDIX H
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IN THE SUPREME COURT OF TEXAS Page 1 of 10
IN THE SUPREME COURT OF TEXAS
════════════
NO. 06-0669
════════════
IN RE RICKY DERZAPF, RELATOR
════════════════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
════════════════════════════════════════════════════
PER CURIAM
In 2005, the Legislature substantially amended the grandparent access statute, codified at Family
Code sections 153.432-34. The statute now includes a presumption that a parent acts in his child’s best
interest, and it permits biological or adoptive grandparents to obtain court-ordered access to a grandchild
only if they show that denial of access will “significantly impair the child’s physical health or emotional
well-being.” Id. § 153.433(2). We conclude that the trial court abused its discretion in awarding access
here because the step-grandfather is neither a biological nor an adoptive grandparent, and the
grandmother did not overcome the statutory presumption favoring the children’s father. We conditionally
grant mandamus relief.
I
Ricky and Jennifer Derzapf were married in the mid-1990s. They had two sons, B.G.D.,[1] age
15, and A.J.D., age 10, as well as one daughter, J.B.D., age 6. Jennifer died of leukemia on June 3, 2001.
During the summer months immediately following Jennifer’s death, Connie and Randy Johnson helped
Ricky care for the children. Connie is Jennifer’s mother and the children’s grandmother; Randy is
Connie’s husband and the children’s step-grandfather. During the first few months, Connie and Randy
were the children’s primary caregivers. This arrangement was necessitated by Ricky’s work schedule,
especially shortly after Jennifer’s death. Initially, Ricky and the Johnsons worked cooperatively on the
children’s behalf. On most nights, Ricky joined the Johnsons and his children for dinner at the Johnsons’
home.
mhtml:file://C:\Users\Silverstone\Downloads\Tex-2007-In-re-Derzapf-PC-grandparent-cust... 8/4/2015
IN THE SUPREME COURT OF TEXAS Page 2 of 10
Once the school year began, however, Ricky attempted to reassert himself as the children’s
primary caregiver—especially for the two older boys. B.G.D. and A.J.D. began spending most nights at
home with Ricky. Tension between Ricky and the Johnsons increased during this time. The Johnsons
perceived Ricky as emotionally aloof and a negative influence on B.G.D. in particular; Ricky believed
that Connie was assuming the role of mother instead of grandmother, directly undermining his influence
and authority over the children.[2] Later, Ricky wanted to keep J.B.D. overnight and on weekends, but
the Johnsons preferred a more gradual transition.
On May 6, 2003, Connie and Randy filed an original suit affecting the parent-child relationship
(SAPCR) seeking custody of the children and requesting that they be appointed sole managing
conservators. The Johnsons alleged that Ricky endangered the children and significantly impaired their
physical health and emotional development, and they obtained an ex parte temporary restraining order
preventing Ricky from obtaining possession of the children. After a hearing, the trial court dissolved the
temporary restraining order and returned the children to their father’s conservatorship. The trial court
noted in its May 22, 2003 letter ruling:
The evidence at the temporary orders hearing was not “satisfactory proof” that the
father’s home raises a serious question concerning the children’s physical health and
welfare.
The main concern of the Johnsons focused on Ricky Derzapf’s “neglect” of the
children, based on his allowing the children to spend so much time with their
grandparents, and the services provided by Connie Johnson in taking the children to doctor
and dentist visits, picking them up from school when sick, etc. I do not see this
arrangement as neglectful in any way. It appears that this was a mutually agreed upon
arrangement following the death of the children’s mother which has been a benefit to
everyone involved — the children, the father and the grandparents. There was no
testimony that the Johnsons ever objected to providing these services, or that they asked
Mr. Derzapf to take on more of the responsibilities. If they had done so, I believe he would
have stepped up to the plate.
The trial court held that the Johnsons, as grandparents, "lack[ed] standing to be appointed as Sole
Managing Conservators or Joint Managing Conservators of the children under section 102.004(a)(1) of
the Texas Family Code” because there was no evidence that Ricky’s care of the children created “serious
question[s] concerning [their] physical health or welfare” as Family Code section 102.004(a) required.[3]
The trial court dismissed the case without prejudice on June 4, 2003.
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After the Johnsons filed the SAPCR, Ricky discontinued their access to the children. According to
Ricky, over the next twelve to eighteen months the children began to heal from their depression spurred
by their mother’s death and the ongoing tension between the Johnsons and him. Ricky took the children
to counseling, and they have since been released from the counselor’s care because of their progress in
coping with their depression, as evidenced by their social and academic success in school and by the fact
that B.G.D. and A.J.D. are no longer on antidepressant medications.
Connie and Randy filed a petition for grandparent access on March 10, 2004. The trial court
appointed Dr. Mark R. Otis, a psychologist, to evaluate Connie, Randy, the Johnsons’ sons,[4] Ricky, and
the children and to advise the court whether the Johnsons should have access. On October 14, 2005, the
trial court held an evidentiary hearing. Dr. Otis testified, and his report was admitted into evidence. The
twenty-four page report, prepared after interviewing all parties, concluded:
It is my opinion that the children will benefit from renewed contact with their mother’s
family. While the children have certainly benefitted from being pulled away from
Connie’s untoward communications, the children’s loss of relatedness to the entire
Johnson family has added to the children’s feeling of loss following their mother’s death. I
have specific concern, however, that Connie is at risk to dominate contact with the
children and to project her experiences inappropriately on the children, thereby
undermining both Ricky’s position and the ability of other Johnson family members to
relate fully to the children. Additionally, Ricky and the Johnsons have highly polarized
views of the situation and one another. Their conflict is now highly intractable and will not
yield easily to change.
Dr. Otis recommended family therapy for Connie, Randy, and their sons, in which the primary focus
would involve family members “learning how to monitor, coach, restrain and help Connie: 1. block
inappropriate communications or questions to the children about their father or faith matters, 2. respect
interpersonal and family boundaries, and 3. be mindful to others’ relational needs rather than being so
focused on her own.” He recommended that the children have visitation with only Randy and the Uncles,
until such time as Connie’s therapist determined that she was ready to join family outings. Alternatively,
he recommended that the Johnsons and the Uncles have access to the children for one full day every two
months.
At the hearing, Dr. Otis testified that the children had formed attachments to the Johnsons, and it
would “not be healthy to cut them off.” He testified that B.G.D. and A.J.D. had a “lingering sadness”
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about their lack of contact with the grandparents, but that it was “not manifested as depression or
behavioral problems or acting out” and that it did not “rise to a level of significant emotional
impairment.”
On February 1, 2006, the trial court signed temporary orders granting the Johnsons and the Uncles
visitation[5] on Thanksgiving Day and the first Saturday of each month.[6] On July 7, 2006, the trial
court issued amended temporary orders stating that: (1) Connie and Randy had standing; (2) denying
access would significantly impair the children’s physical health or emotional well-being; (3) Connie and
Randy, but not the Uncles, were granted visitation with the children during part of Thanksgiving day and
on the first Saturday of each month and could attend the children’s extracurricular activities; and (4) the
Uncles could pick up and return the children during these visits.
Ricky sought mandamus relief. After granting his motion for temporary relief and staying the trial
court’s order, the court of appeals denied the mandamus petition in a per curiam memorandum opinion.
__ S.W.3d __. For the reasons expressed below, we conditionally grant mandamus relief and direct the
trial court to vacate its amended temporary orders of July 7, 2006.
II
Initially, we must determine whether Randy Johnson, the children’s step-grandfather, has standing
to pursue grandparent access.[7] “Possession of or access to a child by a grandparent is governed by the
standards established by Chapter 153.” TEX. FAM. CODE § 102.004(c). Ricky argues that chapter 153
applies only to “biological or adoptive grandparents,” and because Randy is neither, he lacks standing to
seek access. TEX. FAM. CODE § 153.432(a). The Johnsons disagree, citing three reasons Randy should
have standing to bring a suit for grandparent access. First, they argue that although subsection 153.432(a)
states that a “biological or adoptive grandparent” may file a suit for possession or access to their
grandchildren, subsection 153.432(b) refers only to “a grandparent” as opposed to a “biological or
adoptive grandparent,”[8] and thus even non-biological or adoptive grandparents may seek access under
subsection (b). Compare id. § 153.432(a), with id. § 153.432(b).
We disagree. Subsection (b) merely clarifies the circumstances in which a grandparent may
request the possession or access described in subsection (a); it does not redefine who may seek access.
“[C]ourts should not give an undefined statutory term a meaning out of harmony or inconsistent with
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other provisions, although it might be susceptible of such a construction if standing alone.” Texas
Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Because Randy is not a biological or an
adoptive grandparent, he lacks standing to seek grandparent access under section 153.432 of the Family
Code.
Second, the trial court concluded that Randy had “general” standing to file a suit for access to the
grandchildren under section 102.003(a)(9) of the Family Code.[9] Randy argues that his original suit was
filed on May 6, 2003, and it is undisputed that he and his wife had care, control, and possession for at
least six months ending not more than ninety days before they filed suit. That suit, however, was
dismissed, and Ricky argues that because the Johnsons did not file another petition until March 2004, that
date should govern for purposes of determining section 102.003(a)(9) standing.
Regardless of whether Randy 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. As set forth above, Randy does not meet the
more specific standing requirements to pursue a claim under that section. Concluding that Randy had
standing under section 102.003(a)(9) when access was granted based on chapter 153 would permit an end
run around the requirements of section 153.432(a), a result the Legislature cannot have intended.[10] See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (noting “the traditional
statutory construction principle that the more specific statute controls over the more general”).
Finally, the Johnsons argue that Randy has a justiciable interest sufficient to confer standing,
based on In re C.T.H., 112 S.W.3d 262, 265-66 (Tex. App.–Beaumont 2003, no pet.). That case,
however, did not involve the grandparent access statute but was instead a child custody dispute between
the child’s parents, in which the father sought to modify a prior custody order. The maternal grandparents
intervened, alleging that they had had care, control, and possession of the child for at least six months,
and requesting that their daughter (the children’s mother) retain her role as “primary” joint managing
conservator, and alternatively, that they be named “primary” joint managing conservators. C.T.H., 112
S.W.3d at 265. Based on the pleadings and the evidence, the trial court concluded that the grandparents
had a justiciable interest in the controversy.
We face a different situation here. The grandparent access statute explicitly sets forth who may
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sue for access, and Randy did not meet those criteria. We cannot conclude that he has a justiciable
interest in the controversy sufficient to override the statutory text permitting only biological or adoptive
grandparents to seek access pursuant to the standards set forth in section 153.433. We conclude that the
trial court abused its discretion in concluding that Randy had standing and in ordering that he have access
to the children.
III
We now turn to whether the trial court abused its discretion in awarding Connie access pursuant
to section 153.433. The Legislature recently amended the grandparent access statute, effective September
1, 2005, changing the requisite standard for a grandparent to obtain court-ordered access to a grandchild.
Previously, the statute permitted grandparent access if it was in the “best interest of the child.” Act of
Apr. 6, 1995, 74th Leg., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005,
79th Leg., R.S., ch. 484, 2005 Tex. Gen. Laws 1345. As amended, section 153.433 now echoes the
United States Supreme Court’s plurality opinion in Troxel, 530 U.S. at 68, that a trial court must presume
that a fit parent acts in his or her child’s best interest. TEX. FAM. CODE § 153.433. As we recently
recognized, "so long 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) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73 (noting
that the constitution “does not permit a State to infringe on the fundamental right of parents to make child
rearing decisions simply because a state judge believes a ‘better decision’ could be made”).
Section 153.433(2) requires that a grandparent seeking court-ordered access overcome the
presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the
evidence that “denial . . . of access to the child would significantly impair the child’s physical health or
emotional well-being.” TEX. FAM. CODE § 153.433(2). A trial court abuses its discretion when it grants
access to a grandparent who has not met this standard because “‘[a] trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts[,]’ even when the law is unsettled.” In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)(first alteration in original) (footnotes
omitted).
To succeed on her claim then, Connie must overcome the statutory presumption that denying the
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children access to her in particular—not Connie and Randy jointly or the Johnson family as a
whole—would significantly impair the children’s physical health or emotional well-being. TEX. FAM.
CODE § 153.432(2). Connie argues that unlike Mays-Hooper, there is sufficient evidence to prove that
denying her access to her grandchildren would cause the grandchildren’s emotional well-being to suffer,
and she urges us to consider Dr. Otis’s testimony in support of her argument.
While it is true that Dr. Otis believed the children would benefit from renewed contact with the
Johnson family, he did not testify that denying Connie access to her grandchildren would significantly
impair the children’s physical or emotional health. Dr. Otis’s testimony pertained either to both Connie
and Randy or to the Johnson family as a whole, but his recommendations do not support renewed contact
with Connie alone. To the contrary, Dr. Otis noted that Ricky had a reasonable interest in preserving “the
children’s hard-won feelings of peace and security” regained after contact with Connie ceased.
Dr. Otis’s report concluded that the children should first have renewed contact with Randy, then
with the Uncles and extended family, and only later with Connie. Dr. Otis testified that his
recommendation “was based on the strength that I perceived that the grandfather, Randy has.” In fact, Dr.
Otis testified that he could not recommend visitation with Connie, absent supervision, as Connie’s
problems controlling her impulses could be “very influential” and detrimental to the children.
And while Dr. Otis testified that it may be harmful for Ricky to cut off the Johnsons’ access to
B.G.D. in particular and that it was in the children’s best interest that they have some contact with their
grandparents, his testimony does not support awarding Connie access over Ricky’s objection. According
to Dr. Otis, “[t]he manner in which she resisted the children transitioning to [Ricky’s] full-time care
interfered with the children’s emotional and behavioral adjustment.” He also concluded that Connie
actively attempted to alienate B.G.D. from his father and that her behavior was “very damaging” to the
parent-child relationship. Moreover, while Dr. Otis noted the children’s “sadness” at being unable to see
their grandparents, he admitted that these feelings did not rise to the level of a significant emotional
impairment.
The Legislature set a high threshold for a grandparent to overcome the presumption that a fit
parent acts in his children’s best interest: the grandparent must prove that denial of access would
“significantly impair” the children’s physical health or emotional well-being. TEX. FAM. CODE §
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153.433(2) (emphasis added). There has been no such showing here. A court may not lightly
interfere with child-rearing decisions made by Ricky—a fit parent by all accounts—simply because a
“better decision” may have been made. Troxel, 530 U.S. at 73.
IV
Finally, we must consider whether Ricky has an adequate appellate remedy. Determining whether
a party has an adequate remedy by appeal requires a “careful balanc[ing] of jurisprudential
considerations” that “implicate both public and private interests. . . . When the benefits [of mandamus
review] outweigh the detriments, appellate courts must consider whether the appellate remedy is
adequate.” In re Prudential, 148 S.W.3d at 136. We have noted:
Mandamus review of significant rulings in exceptional cases may be essential to preserve
important substantive and procedural rights from impairment or loss, allow the appellate
courts to give needed and helpful direction to the law that would otherwise prove elusive
in appeals from final judgments, and spare private parties and the public the time and
money utterly wasted enduring eventual reversal of improperly conducted proceedings.
Id.
We have previously granted mandamus relief to require a trial court to vacate its temporary orders
granting grandparent access. In re Mays-Hooper, 189 S.W.3d at 778. A grandparent’s rights are generally
subordinate to a parent’s. See TEX. FAM. CODE § 153.433(2); see also Troxel, 530 U.S. at 64-65
(plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can
create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality
stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’”
Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is
perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United
States].” Id.
The temporary orders here divest a fit parent of possession of his children, in violation of Troxel’s
cardinal principle and without overcoming the statutory presumption that the father is acting in his
children’s best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate.
In re Mays-Hooper, 189 S.W.3d at 778; see also Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993)
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(granting mandamus relief to vacate trial court’s temporary order granting visitation in suit to
establish paternity); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (holding that mandamus was an
appropriate remedy because “the trial court’s issuance of temporary orders [was] not subject to
interlocutory appeal”); accord In re Francis, 186 S.W.3d 534, 538 (Tex. 2006) (stating that a writ of
mandamus may be appropriate for reviewing a temporary injunction); In re Newton, 146 S.W.3d 648,
651-52 (Tex. 2004) (conditionally granting mandamus relief and noting that “a temporary restraining
order is generally not appealable”).
V
Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court
to vacate its July 7, 2006 amended temporary orders.[11] TEX. R. APP. P. 52.8. We are confident that
the trial court will promptly comply; our writ will issue only if it does not.
OPINION DELIVERED: March 23, 2007
[1]
Although B.G.D. is not Ricky’s biological son, Ricky adopted him.
[2]
As an example, he cites a letter Connie wrote to B.G.D., noting that once B.G.D. turned seventeen, he could “move
out of [his] dad’s house [and] never go back . . . .”
[3]
Section 102.004(a) was amended, effective September 1, 2005. The version of the statute in effect when the trial
court issued its June 4, 2003 order provided, in relevant part:
[A] grandparent 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 environment presents a serious question
concerning the child’s physical health or welfare
Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005, 74th Leg.,
R.S., ch. 489, 2005 Tex. Gen. Laws 1345.
[4]
The Johnsons’ three sons (collectively, the “Uncles”) were among those interviewed by Dr. Otis.
[5]
The Uncles were not parties to the suit.
[6]
On June 12, 2006, the trial court heard Ricky’s motion to dismiss. At the hearing, Ricky’s lawyer stated that Ricky
would be inclined to grant some type of access to the children, but not court-ordered access and only access that could be
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directed and supervised by Ricky “under his rights as a parent to oversee the interaction with the grandparent.” The
trial court has not ruled on the motion.
[7]
We note that standing was among the factors considered by the United States Supreme Court in concluding that
Washington’s grandparent access statute was unconstitutional. See Troxel v. Granville, 530 U.S. 57, 67, 72 (2000) (plurality
opinion)(noting the “breathtakingly broad” scope of the Washington statute at issue, which permitted “any person” to sue for
access) (citation omitted).
[8]
Family Code section 153.432 provides:
(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request 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 § 153.432 (emphasis added).
[9]
Family Code section 102.003(a)(9) states, “An original suit may be filed at any time by 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 § 102.003(a)(9).
[10]
This is not to say that grandparents may not seek conservatorship by satisfying chapter 102’s standing
requirements. See, e.g., TEX. FAM. CODE § 102.003(a)(9) (authorizing suits by any “person, other than a foster parent” who
has had actual care, control, and possession of the child for a designated period); id. § 102.004(a) (authorizing a grandparent to
file an original suit seeking managing conservatorship under certain circumstances). Possession and access, however, are
governed by chapter 153. Id. § 102.004(c).
[11]
Because the trial court abused its discretion in ordering access pursuant to section 153.433(2) of the Family Code,
we do not reach Ricky’s constitutional concerns nor whether the trial court abused its discretion in granting the Johnsons
possession of, as opposed to access to, the children.
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