Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 320th District Court Potter County, Texas
Trial Court No. 90586-D-FM, Honorable Pamela Cook Sirmon,
CAMPBELL and PIRTLE and PARKER, JJ.
T. CAMPBELL, JUSTICE
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). We will reverse the dismissal order and
remand the case to the trial court for further proceedings.
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.
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."
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."
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 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.
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
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)).
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 ...