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In re Tinker

Court of Appeals of Texas, Tenth District

December 13, 2017

IN RE KEITH AND SERENA TINKER

         Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          TOM GRAY, CHIEF JUSTICE.

         The Tinkers, who are the sole managing conservators of A.K. and N.K., have filed a petition for a writ of mandamus asking this Court to order the trial court in Brazos County to withdraw its order denying their motion to strike an intervention due to lack of standing of Julia and Roberto V., paternal grandparents of the children, and to order the trial court in Burleson County to withdraw its order transferring this proceeding to Brazos County. Because we find that Julia and Roberto do not have standing in this proceeding, we conditionally grant the petition for writ of mandamus.

         Procedural Background

         The children were placed with the Tinkers, the maternal great-aunt and uncle of the children, by the Department of Family and Protective Services and the Tinkers were named the sole managing conservators of the children in a final order entered in 2010. That order named the children's parents, Mary and Mario, as possessory conservators. Mario was granted supervised visitation with the children. On September 26, 2014, the Tinkers filed a petition to terminate the parent-child relationship between the children and their parents. Mary executed an affidavit of relinquishment of her parental rights, which was later withdrawn during the pendency of the proceedings.

         On November 6, 2014, Julia and Roberto filed a petition in intervention seeking possession and access to the children and also filed a motion to transfer venue from Burleson County to Brazos County with an affidavit signed by Julia alleging that the children were residing in Brazos County. Julia and Roberto served the Tinkers through their attorney. However, an affidavit contesting the motion to transfer was not filed until February 5, 2015, which was untimely pursuant to the Family Code. See Tex. Fam. Code Ann. § 155.204(d) (controverting affidavit must be filed on or before the first Monday after the 20th day after the date of notice of a motion to transfer is served). The trial court in Burleson County entered an order transferring the proceedings to Brazos County on February 23, 2015.

         The Tinkers first filed a plea to the jurisdiction in Burleson County on February 15, 2015, and later filed a motion to strike the intervention on December 1, 2016 in Brazos County. The trial court in Brazos County conducted a temporary hearing on December 8, 2016 which included the hearing on the motion to strike the intervention. The trial court denied the motion and determined that Julia and Roberto had standing to intervene as grandparents of the children. The Tinkers filed this petition asking this Court to order the trial court withdraw its order finding that Julia and Roberto had standing to intervene. The Tinkers further seek an order requiring that the proceeding be transferred back to Burleson County because the transfer of venue was improperly ordered due to the lack of standing.

         Mandamus Under the Family Code

         To be entitled to the extraordinary relief of a writ of mandamus, the Tinkers must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex. 2010) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding).

         Standing

         In their second issue, the Tinkers complain that the trial court erred by denying their motion to strike the intervention filed by Julia and Roberto. It is fundamental that a party seeking conservatorship of a child must have standing to seek such relief. See In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.-Fort Worth 2008, no pet.); In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.). Standing is implicit in the concept of subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives the trial court of subject matter jurisdiction and renders subsequent trial court action void. Texas Ass'n of Bus., 852 S.W.2d at 443; In re Smith, 260 S.W.3d 568, 572 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding).

         Section 102.004 of the Texas Family Code addresses standing of grandparents and other relatives to either file an original suit requesting managing conservatorship or to intervene in a pending suit. Tex. Fam. Code Ann. § 102.004 (West 2014). The trial court in Brazos County determined that Roberto and Julia had standing to intervene pursuant to Section 102.004(b), which provides as follows:

(b) An original suit requesting possessory conservatorship 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 leave 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 a sole managing conservator or both parents as ...

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