Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF J.T.S. AND J.R.S., CHILDREN
Appeal from the 330th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-16-02901
Justices Bridges, Evans, and Whitehill.
L. BRIDGES, JUSTICE.
appearing pro se, appeals the trial court's order
appointing paternal Grandmother sole managing conservator and
Mother the possessory conservator of J.T.S. and J.R.S., her
children. In six issues, Mother alleges (1) Grandmother did
not have standing to bring suit; (2) the evidence is
insufficient to order possession of the children to a
grandparent under section 153.433 of the family code; (3) the
trial court violated her due process rights by deciding who
has access to her children; (4) the best interest of the
children is for the parents to have joint managing
conservatorship rather than a non-parent; (5) the trial court
should modify custody because of new evidence showing a
history of past and present domestic violence by Grandmother;
and (6) ineffective assistance of counsel. We affirm the
trial court's order.
grandparents of JTS and JRS filed an original petition for
grandparent possession or access alleging Mother and Father
were unable and unwilling to care for the children. They
alleged the parents abandoned both children and the
grandparents now took care of them. Shortly thereafter,
Grandmother filed a SAPCR motion and a motion to adjudicate
parentage. In the motion, Grandmother asked to be
appointed sole managing conservator of the children because
"appointment of the parents as joint managing
conservators would not be in the best interest of the
to the SAPCR order, a bench trial occurred on January 10,
2017. The court appointed Grandmother the children's sole
managing conservator and Mother the possessory conservator.
The order further provided that Mother's possession and
access to the children "are to be at the sole discretion
of, coordinated by and supervised by [grandmother] at her
home or a place of choosing." The court noted
supervision was required because it found credible evidence
that Mother had a "history or pattern of child neglect
directed against the children."
filed a notice of appeal challenging the court's order
and an "affidavit of indigency" alleging she did
not have sufficient funds to pay for preparation of the
reporter's record. The court reporter challenged the
affidavit, and after a hearing, the trial court sustained the
court reporter's challenge. Mother appealed the order,
and this Court affirmed. See In re J.S., No.
05-17-00341-CV, 2017 WL 1455406, at *1 (Tex. App.-Dallas Apr.
20, 2017, no pet.) (mem. op.). Thereafter, this Court ordered
Mother to confirm in writing that she had paid or made
arrangements to pay the reporter's fee and cautioned that
failure to comply "may result in the appeal being
submitted without the reporter's record."
See Tex. R. App. P. 37.3(c).
filed a motion requesting appointment of counsel, arguing she
was "being treated as if [her] parental rights have been
terminated." Section 107.013 of the family code requires
a court to appoint an attorney ad litem to represent the
interest of an indigent parent of the child who responds in
opposition to the termination when a governmental entity
files a termination suit. See Tex. Fam. Code Ann.
§ 107.013(a)(1) (West 2015). Here, a governmental entity
did not file a termination suit; therefore, section 107.013
did not apply. This Court denied Mother's motion and
directed the Clerk of the Court to send a copy of the Pro
Bono Program Pamphlet to her. We further ordered the appeal
submitted without the reporter's record. Mother filed her
brief and after receiving a defective briefing notice from
the Court, filed an amended brief. Grandmother has not filed
an appellee brief.
as in this case, there is no reporter's record and
findings of fact or conclusions of law are neither requested
nor filed, the judgment of the trial court implies all
necessary findings of fact to sustain the judgment. See
Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex.
App.- Dallas 2008, no pet.). In other words, we must presume
the missing reporter's record supports the decision of
the trial court. See Bennett v. Cochran, 96 S.W.3d
227, 230 (Tex. 2002) (stating "court of appeals was
correct in holding that, absent a complete record on appeal,
it must presume the omitted items supported the trial
court's judgment"). Similarly, statements in a brief
that are unsupported by the record cannot be accepted as
facts by an appellate court. Lyons v. Polymathic Props.,
Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex.
App.-Dallas Jun. 29, 2016, no pet.) (mem. op). With this in
mind, we turn to the issues at hand.
first issue, Mother challenges Grandmother's standing to
bring the SAPCR suit. A person seeking conservatorship must
have standing to bring suit. In re I.I.G.T., 412
S.W.3d 803, 805 (Tex. App.-Dallas 2013, no pet.). Standing is
a component of subject-matter jurisdiction and is a
constitutional prerequisite to maintaining a lawsuit.
Id. The plaintiff has the burden of alleging facts
that, if taken as true, affirmatively demonstrate a
court's jurisdiction to hear a case. Asshauer v.
Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex.
App.-Dallas 2008, pet. Denied). The absence of a
reporter's record obligates us to presume the evidence
presented supports the judgment. Bennett, 96 S.W.3d
at 230. This presumption applies even to matters of standing.
See In re J.A.T., 502 S.W.3d 834, 836 (Tex.
App.-Houston [14th Dist.] 2016, no pet.) (presuming record of
hearing challenging party's standing to file SAPCR, which
was not filed in appellate court, supported trial court's
ruling). Because we do not have a reporter's record, we
must presume Grandmother presented evidence to the trial
court to support her standing to bring the SAPCR.
Id. Mother's first issue is overruled.
second issue, Mother argues the trial court erred because
Grandmother presented no evidence to meet the statutory
burden of proof under family code section 153.433. This
section of the family code allows a trial court to order
reasonable possession of or access to a grandchild if certain
statutory requirements are met. See Tex. Fam. Code
Ann. § 153.433 (West 2014). Again, because we do not
have a reporter's record, we must presume Grandmother
presented evidence to the trial court supporting the
statutory requirements. See Waltenburg, 270 S.W.3d
at 312. C.f, In re H.M.J.H., 209 S.W.3d
320, 321 (Tex. App.-Dallas 2006, no pet.) (trial court did
not abuse its discretion by denying grandparent access under
section 153.433 when record contained no evidence
establishing statutory requirements). Mother's second
issue is overruled.
third issue, Mother argues the trial court violated her due
process rights because it gave no special weight to her
determination of the children's best interests. Parents
enjoy a fundamental right to make decisions concerning
"the care, custody, and control of their children."
Troxel v. Granville, 530 U.S. 57, 65 (2000)
(plurality op.). Thus, a parent must be given a meaningful
opportunity to be heard before a trial court awards
grandparent visitation. See In re Chambless, 257
S.W.3d 698, 700 (Tex. 2008) (trial court abused its
discretion by awarding grandparents temporary visitation
without affording mother meaningful opportunity to present
evidence). In the absence of a reporter's record, we must
presume the trial court provided Mother a meaningful
opportunity to be heard and present evidence thereby
satisfying her due process rights. See, e.g., ...