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In re J.R.W.

Court of Appeals of Texas, Fifth District, Dallas

July 20, 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 ON REHEARING

          DAVID J. SCHENCK JUSTICE.

         On May 19, 2017, on the Court's own motion, we withdrew the opinion issued on March 21, 2017, and we vacated our judgment of that same date. The following is now the opinion of the Court.

         Mother of J.R.W. appeals from a final order appointing herself and J.R.W.'s paternal grandmother ("Grandmother") as joint managing conservators.[1] In her first issue, Mother complains Grandmother lacked standing to intervene to seek access to and conservatorship of J.R.W. In her second issue, Mother argues the trial court erred by appointing Grandmother as a joint managing conservator of J.R.W. In her third and final issue, Mother contends the trial court violated her due-process rights by depriving Mother of opportunities to present arguments and testimony and to examine witnesses. We affirm the trial court's judgment.

         Factual and Procedural Background

         Mother and 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 a petition, seeking appointment of himself and Mother as joint managing conservators. Mother responded with a general denial. By January 2011, the trial court signed orders allowing Father visitation to be supervised by Grandmother. On August 22, 2013, Grandmother filed her original petition in intervention. She filed her first amended petition on December 17, 2013, and a supporting affidavit the next day. On January 10, 2014, Mother filed a motion to strike Grandmother's intervention. After a January 16, 2014 hearing on temporary orders, 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. On March 26, 2014, Grandmother filed a response to Mother's motion to strike, and on April 14, 2014, Grandmother filed an affidavit in opposition to Mother's motion to strike and in support of her possession of or access to J.R.W. On April 17, 2014, the trial court held a hearing on several motions, including Mother's motion to strike, which the trial court later denied on May 1, 2014.

         Mother, Father, and Grandmother proceeded to a bench trial on March 17, 2015, and the trial court signed a final order 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.

         Grandmother's Standing

         A grandparent, by statute, 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.[2] See Tex. Fam. Code Ann. §§ 102.004, 153.432 (West 2016). The question of whether any party has standing to seek managing conservatorship is a threshold jurisdictional issue. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.). 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 would suffer significant impairment unless the grandparent's requested relief is granted. Mother bases 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. As detailed below, we agree with Mother that a finding of significant impairment of the child's physical health or emotional development is necessary to establish standing to intervene.

         I. Grandmother's Standing through Consent

         Grandmother urges that we might avoid the statutory standing question all together as she 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 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 impliedly 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.

         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. On April 17, 2014, at Mother's requested hearing on her motion to strike, she again argued that Grandmother lacked standing to intervene. On May 1, 2014, the trial court denied Mother's motion to strike. Mother raised the issue of Grandmother's standing once again 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. Pleadings and Evidence 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.

         Generally, standing is determined at the time suit is filed in the trial court. Where the evidence supports standing as of that moment, subsequent events will not deprive the court of subject matter jurisdiction. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.). 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. See id. Further, we note the rules of civil procedure authorize amendments to pleadings and that Mother's first amended petition and supporting affidavits were filed prior to the trial court's hearing on Mother's motion to strike. See Tex. R. Civ. P. 65 (substituted instrument takes place of original). Therefore, we consider Grandmother's amended pleadings, not just Grandmother's original petition in intervention, to determine whether the record supports the finding that she had standing at the time she initially intervened.

         III. Sufficiency of Proof to Establish Grandmother's Standing

         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). While Mother bases her arguments on sections 153.432 and 102.004, Grandmother asserts "the Grandparent Access statute, " which we construe to mean section 153.432, is not applicable in this case because she was awarded possession as a conservator rather than mere access as permitted in section 153.432. See Fam. § 153.432. We note that despite the fact that 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., in her pleadings, Grandmother sought conservatorship, and by the time the case proceeded to trial, all understood Grandmother sought to be appointed as joint managing conservator of J.R.W. Accordingly, we will analyze whether Grandmother had standing to intervene under section 102.004.

         Section 102.004 of the family code provides that:

the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit . . . if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.

Fam. § 102.004(b).

         Grandmother's First Amended Petition in Intervention filed December 17, 2013, included a supporting affidavit that alleged following facts to support her petition.[4]

• Mother had "relied heavily upon [Grandmother] for raising [J.R.W.] from the day he was born."
• Mother depended on Grandmother to supply J.R.W. diapers and formula when he was an infant.
• Grandmother continued to help Mother with her expenses after she and Father separated.
• J.R.W. had formed a "very strong bond" with Grandmother and her husband ("Grandfather") when Grandmother acted as a primary child care provider in the summer and as a secondary child care ...

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