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In re D.K.P.

Court of Appeals of Texas, Seventh District, Amarillo

September 13, 2019

IN THE INTEREST OF D.K.P., A CHILD

          On Appeal from the 320th District Court Potter County, Texas Trial Court No. 90586-D-FM, Honorable Pamela Cook Sirmon, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL, JUSTICE

         This appeal concerns a grandparent's standing to bring a suit affecting the parent-child relationship (SAPCR). K.J.P., the biological grandmother of D.K.P., appeals the trial court's order granting the motion to dismiss of D.K.P.'s adoptive mother, appellee K.K.R. (the mother).[1] We will reverse the dismissal order and remand the case to the trial court for further proceedings.

         Background

         D.K.P. was born in December 2007. The child's biological mother is B.P., the grandmother's youngest daughter and the mother's sister. The parental rights of B.P. and D.K.P.'s father were terminated soon after D.K.P.'s birth. D.K.P. was placed in the mother's custody and in 2010 the mother adopted the child.

         In August 2017 the grandmother filed an original suit involving conservatorship, possession, and access to a child. In her live petition, under a paragraph heading entitled "Conservatorship" the grandmother alleged she should be appointed the sole managing conservator of D.K.P. because the mother's appointment as sole managing conservator would not be in the child's best interest and would significantly impair the child's physical health or emotional development. She specifically alleged the mother had engaged in a history or pattern of child neglect. With the apparent intention of rebutting the parental presumption, the grandmother alleged the mother "voluntarily relinquished actual care, control and possession of the child to a nonparent for a period of one year or more, a portion of which was within ninety days preceding the date of intervention in or filing of the suit and the appointment of the nonparent as sole managing conservator is in the best interest of the child."[2]

          As a ground for standing to bring the SAPCR, the grandmother alleged that she "is a person, other than a foster parent, who has had actual care, control and possession of the child for at least six months ending no more than 90 days before suit was filed."[3]

         On November 3, 2017, the trial court conducted an evidentiary hearing on the grandmother's request for temporary orders. After hearing evidence the court denied the request. By instrument filed on December 8, the grandmother requested trial by jury. On March 1, 2018, the mother filed a "motion to dismiss" requesting dismissal of the grandmother's case because she lacked standing to seek conservatorship. On March 8, the trial court conducted an evidentiary hearing on the mother's motion. Only the mother and the grandmother testified. On April 12, the trial court signed an order rendering dismissal of the grandmother's suit.

         Analysis

         The grandmother's sole issue on appeal is whether, by virtue of Family Code section 102.003(a)(9), she had standing to bring a SAPCR seeking conservatorship of D.K.P.

         When a defendant's jurisdictional plea challenges the existence of jurisdictional facts with supporting evidence the standard of review mirrors that of a traditional summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). Thus "'to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction.'" Id. (quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 221 (Tex. 2004)). When an appellate court reviews the denial of a plea to the jurisdiction, and evidence was presented to the trial court, the appellate court reviews de novo whether the evidence raises a material issue of fact. Marino v. Lenoir, 526 S.W.3d 403, 405 n.5 (Tex. 2017) (citing Miranda, 133 S.W.3d at 221, 227-28)); see also City of Tyler v. Owens, 564 S.W.3d 38, 44 (Tex. App.- Tyler 2017) (mem. op.) (noting trial court conducted evidentiary hearing on plea to jurisdiction and citing Miranda for rule, "If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied"), vacated on other grounds, 564 S.W.3d 850 (Tex. 2018) (per curiam); City of Laredo v. Varela, No. 04-10-00619-CV, 2011 Tex.App. LEXIS 3485 (Tex. App.-San Antonio May 11, 2011, pet denied) (mem. op.) (like procedure).

         Standing is a necessary component of subject-matter jurisdiction, without which a court lacks authority to hear a case. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). Standing is simply the right to be heard; it does not mean a party also has a right to prevail. Id.; In re S.S.J.-J., 153 S.W.3d 132, 138 (Tex. App.-San Antonio 2004, no pet.). Because standing to bring a SAPCR is provided by statute, we analyze the standing issue according to the statutory framework. In re K.K.T., No. 07-11-00306-CV, 2012 Tex.App. LEXIS 6906, at *6 (Tex. App.-Amarillo Aug. 17, 2012, no pet.) (mem. op.); In re Fountain, No. 01-11-0198-CV, 2011 Tex.App. Lexis 3327, at *11 (Tex. App.-Houston [1st Dist.] May 2, 2011, orig. proceeding) (mem. op. on reh'g.) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)).

         As noted the grandmother pled standing under Family Code section 102.003(a)(9) which provides, "An original suit may be filed at any time by: a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition." Tex. Fam. Code Ann. § 102.003(a)(9). To compute the time necessary for standing under section 102.003(a)(9), "the court may not require that the time be continuous and uninterrupted but shall consider the child's ...


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