Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 470th Judicial District Court
Collin County, Texas Trial Court Cause No. 470-51760-2018.
Justices Brown, Schenck, and Reichek.
J. SCHENCK, JUSTICE.
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.
party in interest Mother, Father, and Older
Child 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.
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
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.
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. 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. 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.
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.
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.
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.
of Mandamus Review
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).
Paternal Grandmother's Standing
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. 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
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),