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In re J.R.W.

Court of Appeals of Texas, Fifth District, Dallas

March 21, 2017

IN THE INTEREST OF J.R.W., A CHILD

         On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 469-56410-2010

          Before Justices Bridges, Lang-Miers, and Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK, JUSTICE

         Jennifer Lynn Brattain ("Mother"), mother of J.R.W., appeals from a final order appointing herself and J.R.W.'s paternal grandmother Karan Windham ("Grandmother") as joint managing conservators. In her first issue, Mother complains the trial court erred by allowing Grandmother to intervene to seek access to and conservatorship of J.R.W. because she lacked standing. In her second issue, Mother argues the trial court erred by failing to apply a significant-impairment standard to award access to and conservatorship of J.R.W. to Grandmother, by awarding access to and conservatorship of J.R.W. in the absence of sufficient evidence, and by not including required language in the order. In her third and final issue, Mother contends the trial court violated her due-process rights by depriving Mother of the opportunity to present testimony and examine witnesses. Because we conclude the trial court failed to include statutorily required findings in its final judgment, we reverse and remand to the trial court for further proceedings consistent with this opinion.

         Factual and Procedural Background

         Mother and Jeremy Ramond Windham ("Father") have one child, J.R.W., born in May 2009. When J.R.W. was only weeks old, Mother and Father separated. In December 2010, Father filed an original petition in suit affecting the parent-child relationship, seeking appointment of himself and Mother as joint managing conservators. Mother responded with a general denial, and by January 2011, the trial court signed orders allowing Father visitation to be supervised by Grandmother. On August 22, 2013, Grandmother filed her petition in intervention. On January 10, 2014, Mother filed a motion to strike Grandmother's intervention, which the trial court denied on May 1, 2014. After a hearing on temporary orders conducted on January 16, 2014, at which Mother and Grandmother both argued Father had committed family violence and suffered from drug addiction and mental illness, the trial court issued temporary orders appointing Mother as sole managing conservator and awarding Grandmother monthly visitation with J.R.W. at a neutral location.

         Mother, Father, and Grandmother proceeded to a bench trial on March 17, 2015, and the trial court signed a final order in suit affecting the parent-child relationship on September 3, 2015, in which the trial court appointed both Mother and Grandmother as joint managing conservators with Mother having the exclusive right to designate the primary residence of J.R.W. Mother filed a motion for new trial in which she urged, among other things, that the trial court erred in allowing Grandmother's intervention and that the evidence was legally and factually insufficient to support the trial court's judgment. After conducting a hearing, the trial court denied Mother's motion, at which point Mother appealed this case.

         Grandmother's Standing

         A grandparent may file an original suit requesting managing conservatorship under section 102.004(a), intervene in a pending suit under 102.004(b), or file a suit to seek possession or access under section 153.432.[1] See Tex. Fam. Code Ann. §§ 102.004, 153.432 (West 2016). The question of who has standing to seek managing conservatorship is a threshold issue. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.). Standing is a question of law as it is a component of subject-matter jurisdiction. See id. When, as here, the trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. Id. We review the trial court's implied factual findings for legal and factual sufficiency, and we review the trial court's implied legal conclusions de novo. Id.

         Mother argues that Grandmother failed to establish standing to intervene in this case. She contends that the family code requires a grandparent seeking access to or conservatorship of a grandchild to show that the child's physical or emotional well-being will be "significantly impair[ed]" unless the grandparent's requested relief is granted. Mother frames her argument in large part on sections 102.004(b) and 153.432(c). Fam. §§ 102.004, 153.432. Section 102.004(b) permits a court to allow a grandparent to intervene so long as there is satisfactory proof that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the grandchild's physical health or emotional development. Id. § 102.004(b). Section 153.432(c) requires a grandparent filing a suit for possession and access to a grandchild to execute and attach a supporting affidavit alleging that denial of possession of or access to the grandchild by the grandparent would significantly impair the child's physical health or emotional well-being. Id. § 153.432.

         I. Grandmother's Standing through Consent

         Grandmother alleges Mother and Father consented to her intervention. She points to section 102.004(a)(2) that permits a grandparent to file an original suit requesting managing conservatorship if there is satisfactory proof to the court that the parents or managing conservator consented to the suit. Fam. § 102.004(a)(2). Grandmother argues first that we may presume Mother's consent from the fact that she failed to provide transcripts from all the hearings conducted in this case. She points to four pretrial hearings that are noted on the court's docket, but for which Mother has not provided transcripts. Grandmother next argues Mother actually consented to her standing by consenting to temporary orders providing Grandmother with court- ordered access to J.R.W. She also points to Mother's later pleadings in which she stated that "[t]he Court has jurisdiction of this case and of all the parties . . . ." and requested Grandmother be "appointed as Intervenor with limited supervised visitation rights for the child." Finally, Grandmother argues Father expressly or implied consented to her intervention because he actively participated in the lawsuit and filed pleadings referring to Grandmother as an intervenor without objecting to her standing.

         In response to Grandmother's original and amended petitions to intervene, Mother filed a pro se motion to strike Grandmother's invention in which she challenged Grandmother's standing to seek either access or conservatorship. Mother made repeated efforts to be heard on her motion to strike at the trial court's hearing on January 2014 on temporary orders, but the trial court informed Mother she would have to set a separate hearing for her motion to strike. At Mother's requested hearing on her motion to strike, she again argued that Grandmother lacked standing to intervene. Mother raised the issue of Grandmother's standing at trial and once more in her motion for new trial. Grandmother fails to point to authority from either the supreme court or this Court in support of her argument that we might imply consent in these circumstances, and we find the record sufficiently developed and clear to reject it. Accordingly, we reject Grandmother's arguments regarding consent and turn to Mother's arguments.

         II. Timing of Events to Establish Standing

         Mother complains that many of Grandmother's allegations in her affidavit and amended affidavit complained of events that took place after her original petition to intervene was filed and argues they should not be considered in determining whether there is significant impairment so as to support standing. In essence, Mother asks us to ignore the post-intervention record as it relates to standing at the time judgment was entered. She urges us to reverse on the basis of an alleged error that Grandmother could have corrected by dismissing and later refiling a petition and affidavit before the entry of judgment resulted in an improper judgment.

         Mother relies our decision in In re M.P.B., in which we noted that standing is determined at the time suit is filed in the trial court. 257 S.W.3d at 808. In that case, the grandmother relied on section 102.003(a)(9) to confer standing. Tex. Fam. Code Ann. § 102.003(a)(9) (West 2016). Section 102.003(a)(9) permits a person, other than a foster parent, who has actual care, control, and possession of the child for at least six months not more than 90 days preceding the date of the filing of the petition to file an original suit. Id. Thus, the statute providing standing in In re M.P.B. required evidence of actual care, control, and possession that took place prior to the filing of the petition putting the focus of the standing inquiry directly on the period of time immediately preceding the filing. Id.

         In contrast, in her amended petitions and response to Mother's motion to strike, Grandmother claimed standing under sections 102.004, 153.432, and 153.433, the substance of which we will detail below. Her first amended petition, as did her supporting affidavits, alleged appointing Mother and Father as joint managing conservators would cause significant impairment to the child's physical health or emotional well-being.[2] The question on appeal is whether proof in support of that legal conclusion can be considered assuming, as Mother urges, it was developed after the intervention but prior to the judgment.

         When standing has been conferred by statute, the statute itself should serve as the proper framework for a standing analysis. See In re K.D.H., 426 S.W.3d 879, 883 (Tex. App.- Houston [14th Dist.], no pet.) (interpreting what is necessary for there to be "satisfactory proof to the court" in the context of section 102.004(a)). Neither of the statutes cited in Grandmother's pleadings require all the underlying facts to support standing to be proven at the time the original petition was filed. Tex. Fam. Code Ann. §§ 102.004, 153.433 (West 2016). Moreover, whatever the state of the record might have been at that moment, our reversible error analysis looks to whether the appellant has suffered the "rendition of an improper judgment." See Tex. R. App. P. 44.1(a)(2). Accordingly, we will consider the record at the time of the judgment.

         III. Sufficiency of Proof to Establish Grandmother's Standing

         Moving past the question of the scope of the relevant record inquiry, Grandmother had the burden of establishing her standing below.[3] See Orix Capital Markets, LLC v. Am. Realty Trust, Inc., 356 S.W.3d 748, 752 (Tex. App.-Dallas 2011, pet. denied).

         Grandmother asserts "the Grandparent Access statute, " which we construe to mean section 153.433, is not applicable in this case because she was awarded possession as a conservator rather than mere access as permitted in that actual section. See Fam. § 153.433 (permitting court to order possession of or access to a grandchild under certain circumstances). However, Grandmother's attorney represented to the trial judge at the hearing on Mother's motion to strike that Grandmother was not seeking parental rights but only possession of or access to J.R.W. pursuant to section 153.433.

         Section 153.432 of the family code permits a biological or adoptive grandparent to request possession of or access to a grandchild by filing an original suit or a suit for modification. Fam. § 153.432(a). The statute requires a grandparent filing suit to "execute and attach an affidavit on knowledge or belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would significantly impair the child's physical health or emotional well-being." Fam. § 153.432(c). The statute also requires the court to deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under section 153.433. Id. § 153.432. Section 153.433 permits the court to order reasonable possession of or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and
(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B) has been found by a court to be ...

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