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In re Nelke

Court of Appeals of Texas, Fifth District, Dallas

April 5, 2019


          Original Proceeding from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-51760-2018.

          Before Justices Brown, Schenck, and Reichek.



         In this mandamus proceeding, relator Evelyn Nelke (Maternal Grandmother) seeks relief from the trial court's November 29, 2018 temporary orders (Temporary Orders) in this suit affecting the parent-child relationship. After reviewing the parties' briefs and the mandamus record, we have determined Maternal Grandmother is entitled to partial relief from the Temporary Orders. We therefore conditionally grant the writ in part and deny it in part.


         Real party in interest Mother, Father, and Older Child[1] lived with real party in interest Paternal Grandmother for about a year. In February 2018, Father committed suicide, and Older Child and Mother, pregnant with Younger Child, moved out of Paternal Grandmother's home and into Maternal Grandmother's home.

         On March 23, 2018, Paternal Grandmother filed an original petition in suit affecting the parent-child relationship (SAPCR) regarding Older Child. That same month, Child Protective Services (CPS) received a referral regarding Older Child.

         In July 2018, Younger Child was born, and about that time, CPS received a referral regarding Younger Child. Concerned about allegations of Mother's drug use, CPS conducted an investigation, during which Mother tested positive for drug use. Mother agreed to a CPS parent-child safety placement, which placed both children with Maternal Grandmother and required that Mother move out of Maternal Grandmother's home and have only supervised visitation with the children.

         On July 12, 2018, Maternal Grandmother filed a petition to intervene in Paternal Grandmother's SAPCR regarding Older Child and filed an original SAPCR regarding Younger Child.[2] In her original petition, Maternal Grandmother sought to be named the sole managing conservator of Younger Child. On July 24, 2018, Paternal Grandmother nonsuited her SAPCR regarding Older Child.[3] On September 14, 2018, Paternal Grandmother petitioned to intervene in Maternal Grandmother's original SAPCR regarding Younger Child, seeking conservatorship of, possession of, and access to Younger Child.

         On November 29, 2018, the respondent trial court judge held a temporary orders hearing, at the conclusion of which the trial court ruled that Paternal Grandmother would have some access and possession and be appointed a possessory conservator "because the elements of [family code section] 102.004(a)(1) were met." That same day, the trial court signed the Temporary Orders, which appointed Maternal Grandmother as managing conservator and Mother and Paternal Grandmother as possessory conservators, granted Paternal Grandmother an expanded standard possession schedule, granted Mother supervised access at agreed times, and provided for health insurance and medical support of Younger Child. The trial court set trial on the SAPCR regarding Younger Child for March 7, 2019.

         On January 14, 2019, Maternal Grandmother filed this petition for writ of mandamus and a motion for emergency relief requesting this Court stay the underlying proceedings pending this Court's ruling on her petition for writ of mandamus. By order dated January 18, 2019, this Court granted Maternal Grandmother's motion for emergency relief, stayed the underlying proceedings, stayed the Temporary Orders, and requested that the real parties in interest respond by February 1, 2019. Only Paternal Grandmother responded.

         In her petition for writ of mandamus, Maternal Grandmother raises two issues. First, she challenges Paternal Grandmother's standing to file a petition to intervene in Maternal Grandmother's pending original SAPCR regarding Younger Child. Second, Maternal Grandmother argues the trial court abused its discretion in awarding Paternal Grandmother possession of and access to Younger Child.

         Availability of Mandamus Review

         Mandamus is an extraordinary remedy. See In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will ordinarily issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). In the context of temporary orders affecting possession of and access to a child, the supreme court has held that a trial court abuses its discretion, warranting mandamus relief, if it grants possession of or access to a grandparent without proof sufficient to overcome the presumption that a parent acts in the child's best interest by proving that denial of the grandparent's possession of or access to the child would significantly impair the child's physical health or emotional well-being. See In re Scheller, 325 S.W.3d 640, 646 (Tex. 2010) (orig. proceeding) (per curiam).


         I. Paternal Grandmother's Standing

         As a preliminary matter, we address Paternal Grandmother's argument that we should not address Maternal Grandmother's challenge to her standing on mandamus because Maternal Grandmother did not object to her standing in the trial court.[4] However, subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. See In re D.S., 555 S.W.3d 301, 314 (Tex. App.-Dallas 2018, pet. filed). Accordingly, we will address whether the trial court erred in concluding at the temporary orders hearing that Paternal Grandmother had standing.

         Because the family code by its terms confers standing on parties, we begin by reviewing whether a party has established standing within the framework of that code. See State v. Naylor,466 S.W.3d 783, 791 (Tex. 2015) (requiring mandamus petitioner intervening after final judgment to first establish its standing to present its argument on appeal); see also In re Derzapf,219 S.W.3d 327, 331-33 (Tex. 2007) (orig. proceeding) (per curiam) (analyzing whether party established standing as set forth in section 153.432 of family code). A grandparent may file an original suit requesting managing conservatorship under section 102.004(a), ...

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