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In re J.T.S.

Court of Appeals of Texas, Fifth District, Dallas

March 26, 2018


          On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-02901

          Before Justices Bridges, Evans, and Whitehill.



         Mother, 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.


         The 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.[1] 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 children."

         According 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."

         Mother 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).

         Mother 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.


         When, 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.

         In her 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.

         In her 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.

         In her 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., ...

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