in the Interest of L. D. F., a Child

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-12-00347-CV
IN THE INTEREST OF L.D.F., §
A CHILD. Appeal from the
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383rd Judicial District
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of El Paso County, Texas
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(TC# 2011CM5118)
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OPINION
J.C. (“Father”), the biological father of L.D.F., appeals the trial court’s order in which
Father and L.D.F.’s maternal grandmother, M.F. (“Maternal Grandmother”) were appointed joint
managing conservators of L.D.F., and J.F. (“Mother”) was appointed possessory conservator. In
four issues, Father maintains that the trial court erred by finding that Maternal Grandmother had
standing to intervene in the SAPCR1 filed by Father, alternatively contending that the trial
court’s judgment failed to conform to intervenor Maternal Grandmother’s pleadings. We affirm.
BACKGROUND
Father contends that he is the biological father of L.D.F. Father and Mother met in 2010,
while both were under psychiatric care at University Behavioral Health of El Paso (“UBH”), a
1
SAPCR is the recognized acronym for “suit affecting a parent-child relationship.”
private mental health hospital. Father has been diagnosed with bipolar disorder, and prior to the
filing of this suit, had been admitted to psychiatric hospitals for treatment, voluntarily and
involuntarily, five times in five years. Father was involved in a car accident in which he blacked
out and lost thirty minutes of memory leading to his most recent psychiatric hospitalization in
March 2011. The following month, April 2011, L.D.F. was born. After L.D.F.’s birth, his
Maternal Grandmother took possession of him, purportedly at the behest of Mother, who
continued to be hospitalized for unknown reasons.
In July 2011, three months after L.D.F.’s birth, Father filed suit against Mother to
establish paternity and sought sole managing conservatorship of L.D.F., asserting Mother could
be served at the El Paso Psychiatric Center. The following month, prior to the temporary orders
hearing, Mother filed a general denial and Maternal Grandmother filed a petition in intervention
for conservatorship seeking sole managing conservatorship. In August 2011, the trial court held
an abbreviated temporary orders hearing in which Mother began to testify before the court
recessed to speak to the attorneys off the record. The trial court subsequently explained on the
record that it had found that Mother was incompetent to stand trial and serve as a witness. The
court did not hear any further evidence or enter a ruling on the record prior to signing a
temporary order that day appointing Maternal Grandmother, paternal grandmother, paternal
grandfather, and Father as L.D.F.’s temporary joint managing conservators and Mother as
possessory conservator with no visitation. The temporary order was signed by Father, Maternal
Grandmother, paternal grandmother, and paternal grandfather, but not Mother although the order
indicates Mother was present for the hearing. The order did not name any party as a primary
managing conservator, nor was any party ordered to provide child support or medical insurance,
and L.D.F. was to spend every Monday from 4:00 p.m. to Thursday at 4:00 p.m. with his father
2
and the remaining time with Maternal Grandmother. No other possession schedule was ordered.2
Father subsequently filed a plea to the jurisdiction, seeking dismissal of intervenor
Maternal Grandmother for lack of standing. The trial court denied the plea. During a hearing in
January 2012, Father testified that Mother received treatment at the El Paso Psychiatric Center
for about three months after L.D.F.’s was born. According to Father, he and Mother are in a
relationship. Father told the court that “we were supposed to locate an apartment, move in
together, establish and that [sic]. But for some odd reason, they kept her in the hospital for like
an extra three months.”
According to Father, in September 2011, he needed to go to Fredericksburg, Texas, to
take care of an outstanding warrant for possession of less than five grams of marijuana.
Mother’s sister lives in Fredericksburg, and Father asked if he could stay with her while he was
in town. While staying with Mother’s sister, Father was arrested for assaulting her. Father
maintained he pleaded guilty because “I had to. I had to come home and take care of my child.
What am I going to stay in jail for[?]” Father was in jail for one day.
Father lives with his parents, has a car, and receives disability benefits as the result of his
bipolar diagnosis; however, he would like to return to work. Father reported he takes his
prescription medication “at [his] leisure” for minor bipolar symptoms, although he is “not really
too sure.” Father testified that he sees his child from “7:00 Monday morning to 4:00 Thursday
evening” and picks up the child from Maternal Grandmother. Father takes care of L.D.F. until
his parents “arrive home from work about 4:00 to 5:00 in the afternoon.”
At the final hearing in April 2012, Father testified he and Mother were still in a
relationship, were still intimate, and were hoping to have more children. Father told the court
that he and Mother had lived together at his parent’s house for about a month and a half and then
2
Paternal grandparents never filed any pleadings in this case seeking intervention or conservatorship.
3
“we lived in an apartment for a month.” Father also admitted he had hit Mother on her arm, and
when asked why, he replied, “[f]or some odd reason I do not know. Right here, she was walking
away.” Father remembered when Mother exhibited two black eyes, but denied knowing how she
received them. According to Father, Mother had been hospitalized at the El Paso Psychiatric
Center three times since L.D.F.’s birth. Father was prescribed lithium from a doctor at MHMR,
but had terminated his relationship with MHMR, and has not taken any medication since
September 2011.
Following the conclusion of the final SAPCR hearing, in which Father discussed his
psychiatric history, his criminal record, and his relationship with his son, the trial court issued an
order establishing Father as L.D.F.’s father. The SAPCR decree appointed Father and Maternal
Grandmother as joint managing conservators and Mother as possessory conservator, with no
primary conservator designation. Like the temporary order, no visitation was ordered for Mother
while Father’s period of possession began every week from Monday at 7:00 a.m. to Thursday at
4:00 p.m., and Maternal Grandmother was granted possession of the remainder of the week.
Further, no provision was made for any holiday possession schedule and neither parent was
ordered to provide child support or medical insurance. Father appealed.3
DISCUSSION
Standing
In Issues One and Three, Father contends that Maternal Grandmother has no standing to
intervene. Father argues his appointment as a joint managing conservator demonstrates the trial
court found Father was a fit parent who would not significantly impair the child’s physical health
or emotional development pursuant to TEX.FAM.CODE. ANN. § 102.004(b)(West 2014).
Therefore, the trial court erred by allowing Maternal Grandmother to intervene. In Issue Two,
3
L.D.F.’s mother never participated in suit, apart from filing an answer and appearing briefly for testimony at the
temporary orders hearing before being adjudged incompetent to testify.
4
Father alternatively claims that the trial court abused its discretion in appointing Maternal
Grandmother as a joint managing conservator because she failed to identify specific actions or
omissions indicating how Father’s sole managing conservatorship would significantly impair
L.D.F.’s physical health or emotional development. Lastly, Father complains the trial court erred
by appointing Maternal Grandmother a joint managing conservator when she only pled for
appointment of sole managing conservator; therefore, the trial court’s judgment did not conform
to her pleadings. We disagree with Appellant’s contentions.
Standard of Review and Applicable Law
“Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party’s lack of standing defeats a
court’s subject matter jurisdiction and renders any proceedings against that party void. Id.
Standing may arise either from judicially-recognized constitutional grounds or by statute.
Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2000). “When standing has been conferred by
statute, the statute itself serves as the proper framework for a standing analysis.” In re S.M.D.,
329 S.W.3d 8, 12 (Tex.App.--San Antonio 2010, pet. dism’d).
We review questions of standing de novo. Id. at 13. The party asserting standing bears
the burden of proof on this issue. Id. In assessing standing, we look primarily to the pleadings
and consider relevant evidence of jurisdictional facts “when necessary to resolve the
jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
We construe the pleadings in the petitioner’s favor, looking to the language to ascertain the
pleader’s intent. In re M.J.G., 248 S.W.3d 753, 757 (Tex.App.--Fort Worth 2008, no pet.);
Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex.App.--El Paso 2002, no pet.). In family law
cases in which a petitioner must go beyond mere pleading allegations and provide “satisfactory
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proof” of jurisdictional facts to establish statutory standing, the petitioner meets that burden
where those predicate facts are proven by a preponderance of the evidence. In re S.M.D., 329
S.W.3d at 13. “When, as in this case, the trial court does not make separate findings of fact and
conclusions of law” on the issue of intervenor standing, “we imply the findings necessary to
support the judgment . . . [and] review the entire record to determine if the trial court’s implied
findings are supported by any evidence.” Id.
“Generally, an intervenor must show standing to maintain an original suit in order to
intervene.” In re M.J.G., 248 S.W.3d at 757; see also TEX.FAM.CODE ANN. § 102.003(a)(West
Supp. 2014)(setting out list of parties with general standing to file a suit affecting the parent-
child relationship). However, per statute, a grandparent who would otherwise lack standing to
file an original SAPCR petition may obtain leave of court to intervene in a pending SAPCR
properly brought by a party with standing, provided the grandparent demonstrates, by a
preponderance of the evidence, “that appointment of a parent as a sole managing conservator . . .
would significantly impair the child’s physical health or emotional development.”
TEX.FAM.CODE. ANN. § 102.004(b); see also In re S.M.D., 329 S.W.3d at 13. The significant
impairment language in Section 102.004(b) mirrors identical language in Section 151.131
establishing the Family Code’s parental presumption and custody provision. Id. at 15. “In fact,
the grandparent must make the same showing to establish standing as a nonparent must make to
overcome the presumption that a parent is to be named managing conservator.” Id. at 15 & n.5.
Inclusion of this language in a set of 2005 amendments to the Family Code, Act of
May 27, 2005, 79th Leg., R.S., ch. 484, § 3, 2005 TEX.GEN.LAWS 1345,4 represents a legislative
response to the United States Supreme Court’s decision in Troxel v. Granville, in which a
4
Prior to 2005, grandparents did not have to prove any significant impairment of a child’s physical health or
emotional development as a prerequisite to intervene in a SAPCR. See, e.g., Chavez v. Chavez, 148 S.W.3d 449,
455-56 (Tex.App.--El Paso 2004, no pet.)(describing the standard for grandparent intervention as “relaxed”).
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plurality of the court struck down an overbroad Washington grandparent visitation statute that
failed to accord deference to a fit parent’s constitutionally protected child-rearing decisions. 530
U.S. 57, 68-9, 120 S. Ct. 2054, 2061-62, 147 L. Ed. 2d 49 (2000); see In re Derzapf, 219 S.W.3d
327, 333 (Tex. 2007)(citing In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006))(noting that
identical health and emotional well-being language in Section 153.433 grandparent visitation
statute designed to protect fundamental parental rights “so long as a parent adequately cares for
his or her children (i.e., is fit). . . ”); In re K.D.H., 426 S.W.3d 879, 895-96 (Tex.App.--Houston
[14th Dist.] 2014, no pet.)(Jamison, J., dissenting)(noting that inclusion of health and emotional
well-being language in Section 102.004(a)(1) -- the provision granting standing to file original
SAPCR suits -- served to ensure the State complied with Troxel where parents are fit). Thus,
“[t]he jurisdictional requirement of standing helps ensure that a parent’s constitutional rights are
not needlessly interfered with through litigation.” In re Russell, 321 S.W.3d 846, 857
(Tex.App.--Fort Worth 2010, orig. proceeding)(suggesting that the 2005 standing amendments
represent legislative attempt to narrowly tailor infringement on parental liberty interest in child-
rearing).
Analysis
As a threshold matter, we quickly dispatch the argument Appellant advances in Issues
One and Three for resting on two flawed legal premises. First, we refute Appellant’s contention
that under the plain language of the Family Code, appointment of a parent in a limited
conservatorship capacity somehow automatically precludes appointment of a grandparent as joint
managing conservator by operation of law. The language in the Family Code is clear: if sole
managing conservatorship by one parent or joint managing conservatorship by both parents
would result in significant impairment of a child’s physical health or emotional development, the
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court has wide discretion to appoint conservators in the child’s best interest. TEX.FAM.CODE
ANN. § 153.131(a)(West 2014). While we agree with Appellant that Section 102.004(b),5 a
standing statute, does not grant the trial court power to appoint a parent and grandparent as joint
managing conservators, Section 153.372 specifically authorizes a nonparent to serve as a joint
managing conservator with a parent. TEX.FAM.CODE ANN. § 153.372(a); see also, e.g., In re
J.S.P., 278 S.W.3d 414, 417, 419 (Tex.App.--San Antonio 2008, no pet.)(where father had
limited cognitive abilities, limitation of father’s possessory rights by appointing him and
grandmother as joint managing conservators was a reasonable exercise of trial court’s
discretion). Thus, when the statutory provisions are read as a whole, it becomes clear that once a
non-parent surpasses the high bar set for intervenor standing under Section 102.004(b), the trial
court may allow the grandparent “to intervene and seek both managing and possessory
conservatorship.” In re S.M.D., 329 S.W.3d at 14; see also In re Hidalgo, 938 S.W.2d 492, 496
(Tex.App.--Texarkana 1996, no writ).
Second, Appellant’s argument that his appointment as a joint managing conservator
under these facts constituted an implicit fitness finding defeating intervenor jurisdiction is
fallacious. Where a trial court appoints a parent and nonparent as joint managing conservators, it
implicitly rules that parent’s sole custody would significantly impair the child’s physical health
or emotional development. See Maudlin v. Clements, 428 S.W.3d 247, 264 (Tex.App.--Houston
[1st Dist.] 2014, no pet.). Here, because the trial court permitted grandparent intervention and
joint custody in this case, we must assume it impliedly found that Appellant’s sole managing
conservatorship would significantly impair L.D.F.’s physical health or emotional development.
Id. As such, Maternal Grandmother’s standing ultimately turns on the question Appellant
presented in Issue Two: did the trial court abuse its discretion in making the implied adverse
5
Section references are to the Family Code unless otherwise specified.
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welfare finding that served as a condition precedent for both interventor standing and a
modification of the custody arrangement?6 We find that it did not.
In assessing Maternal Grandmother’s standing, we interpret the “significant impairment”
language in Section 102.004 in light of our previous interpretations of identical language in
Section 153.131, the Family Code’s parental presumption and custody provision. In re S.M.D.,
329 S.W.3d at 15. To establish standing, Maternal Grandmother was required to show by a
preponderance of the evidence that “some specific, identifiable behavior or conduct of the parent
will probably cause” the requisite level of harm under the statute. In re De La Pena, 999 S.W.2d
521, 528 (Tex.App.--El Paso 1999, no pet.). “[P]hysical abuse, severe neglect, abandonment,
drug or alcohol abuse, or immoral behavior on the part of the parent” are all factors the trial court
may consider in assessing significant impairment. Id. While past misconduct alone “may not be
sufficient to show present unfitness,” we recognize “an adult’s future conduct may be somewhat
determined by recent past conduct.” Id. “Because safety, security, and stability are critical to
child development, the danger of uprooting a child may in some instances rise to a level that
significantly impairs the child’s emotional development.” Chavez, 148 S.W.3d at 458-59.
Here, there is more than enough evidence for Maternal Grandmother to meet her standing
burden and show that Appellant’s sole managing conservatorship would probably result in
significant impairment of L.D.F’s physical health or emotional development. Maternal
Grandmother testified that L.D.F. had become attached to her during the first three months of
infancy, and that L.D.F. would become upset when separated from her. We recognize early
childhood development as a factor the trial court may consider in its harm assessment. Id.
6
Appellant did not argue in his brief that the joint managing conservatorship was not in the best interest of the child.
As such, we limit our analysis to the narrow question of standing.
9
Furthermore, prior to suit, Appellant had been diagnosed with bipolar disorder, 7 and was
hospitalized for mental health reasons five times in five years. The Court is sensitive to the
issues surrounding mental health in the family law context, and we recognize that a parent’s
mental illness diagnosis alone does not necessarily demonstrate that a child’s physical health or
emotional development will be significantly impaired by parental custody. See, e.g., In re Allen,
359 S.W.3d 284, 291 (Tex.App.--Texarkana 2012, no pet.)(mother’s diagnosis of bipolar
disorder alone is insufficient to justify significant impairment of child finding). However, we
also recognize that “the trial court is in the best position to observe the witnesses and ‘feel’ the
forces, powers, and influences that cannot be discerned by merely reading the record[,]” and
therefore defer to its assessments, particularly in mental health cases, where those findings are
not an abuse of discretion. In re J.S.P., 278 S.W.3d at 418-19 [Internal quotation marks
omitted].
Additional evidentiary factors make Appellant’s diagnosis and psychiatric history
relevant. Appellant’s first psychiatric hospital stay more than a year before L.D.F.’s birth
stemmed from Appellant’s use of methamphetamine, an illegal substance. His second hospital
stay—a year before L.D.F. was born, at which time Appellant met L.D.F.’s mother—was an
involuntary two-week commitment stemming from his assault of his older brother. Seven
months prior to the final hearing in this case, while suit in this action was pending, Appellant
traveled to Fredericksburg to take care of an old warrant for marijuana possession. While in
Fredericksburg, Appellant was arrested for assaulting L.D.F.’s maternal aunt, with whom he was
staying.8 Furthermore, Appellant characterized his bipolar disorder as being mild, and
7
Appellant testified that he had initially been diagnosed as having both schizophrenia and bipolar disorder, but that
doctors later diagnosed him as only having bipolar disorder.
8
We note that Appellant’s admission that he once may have hit L.D.F.’s mother could have ostensibly precluded the
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maintained that his prior bad conduct stemmed from his illness, which is now under control.
However, he also testified at the final hearing that he was no longer under the care of any mental
health professionals after voluntarily terminating treatment, saying that he took lithium pills “at
[his] leisure” to control mood swings.
Taking all those factors together in the aggregate and viewing them in the proper
chronological context, we are unconvinced by Appellant’s argument that the taint of past bad
conduct is too attenuated to justify the trial court’s implicit adverse welfare finding. Although
Appellant testified that he independently washed, fed, and cared for L.D.F., Appellant had a
history of past drug use and various criminal cases against him, including one for which pled
guilty for an assault charge shortly before the final paternity hearing. The trial court did not
abuse its discretion in finding sufficient jurisdictional facts conferring standing on Maternal
Grandmother. Her intervenor status in this suit was proper.
Issues One, Two, and Three are overruled.
Pleadings
trial court from appointing him as a joint managing conservator at all. See TEX.FAM.CODE ANN. § 153.004(a)(in
appointing party as sole or joint managing conservator, trial court shall consider “intentional use of abusive physical
force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person
younger than 18 years of age . . . ”); TEX.FAM.CODE ANN. § 153.004(b)(court may not appoint party as joint
managing conservator if “credible evidence is presented of a history or pattern of . . . physical or sexual abuse by
one parent directed against the other parent . . . ” and rebuttable presumption against fitness is created); In re L.C.L.,
396 S.W.3d 712, 717 (Tex.App.--Dallas 2013, no pet.)(“A single act of violence or abuse can constitute a ‘history’
of physical abuse for purposes of section 153.004 . . . .”). Since the trial court appointed Appellant as a joint
managing conservator, we assume that it must not have found his testimony on that issue to be credible, and since
neither party raises this issue or challenges this implied finding, we end our analysis there.
As for the assaults against his brother and L.D.F.’s maternal aunt, they also could ostensibly constitute family
violence under TEX.FAM.CODE ANN. § 71.004(1)(West 2014), evidence which the court must consider in assessing
the scope of possession by a parent appointed as a possessory conservator. TEX.FAM.CODE ANN. 153.004(c).
Although Appellant was appointed joint managing conservator and not possessory conservator, the trial court is
barred from giving a parent “access to a child” where a preponderance of the evidence shows a history of family
violence unless (1) the court finds such an arrangement would not “endanger the child’s physical health or emotional
welfare and would be in the best interest of the child,” and (2) the order contains certain precaution measures to
mitigate the risk of future violence. TEX.FAM.CODE ANN. 153.004(d), (d-1). Because the parties also failed to raise
this issue, we do not address it, and take the arrests only as evidence of repeated run-ins with law enforcement and
not for the veracity of the alleged underlying conduct.
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In Issue Four, Appellant argues that the trial court erred by granting Maternal
Grandmother joint managing custody when she asked only for sole managing custody in her
pleadings. Maternal Grandmother responds that the variance between the relief granted and the
relief she requested is immaterial. We agree.
A trial judgment “shall conform to the pleadings . . .” in a given case. TEX.R.CIV.P. 301.
“In child custody cases, where the best interests of the child are the paramount concern, technical
pleading rules are of reduced significance.” Messier v. Messier, 389 S.W.3d 904, 907
(Tex.App.--Houston [14th Dist.] 2012, no pet.). “Pleadings must at a minimum notify the
opposing party of the claim involved.” Id. Here, Maternal Grandmother’s pleadings properly
placed Appellant on notice that she intended to seek custody of L.D.F. because Appellant’s sole
managing conservatorship would result in significant impairment to L.D.F.’s physical and
emotional welfare. The pleadings also properly established that Maternal Grandmother had
intervenor standing, and as we stated previously, the trial court had wide discretion to structure
the custody arrangement in L.D.F.’s best interest once her intervenor status was established.
Appellant’s pleading complaint is without merit.
Issue Four is overruled. We affirm the trial court’s judgment.
September 19, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J. (Not Participating)
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