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In re M.B.

Court of Appeals of Texas, Ninth District, Beaumont

October 3, 2019


          Submitted on August 23, 2019

          Original Proceeding 418th District Court of Montgomery County, Texas Trial Cause No. 19-03-04129-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.


          PER CURIAM.

         Does a fit grandparent have the right to intervene and be made a party to a suit affecting the parent-child relationship (SAPCR) when the circumstances that led to the Department's removal of the children show the children's sole surviving parent, their father, is awaiting trial after being charged with murdering their mother?[1] Here, the court denied Grandfather the right to intervene, stating the court failed to "see how [allowing the grandfather to intervene into the suit would] benefit the Court's responsibility in deciding what's in the best interest and the safety of [the] two children."[2]

         Subsequently, Grandfather petitioned this Court seeking mandamus relief. He argues the trial court abused its discretion by denying his request to intervene and be heard on his claim seeking rights of custody and possession to the children. The children are his grandchildren based on his biological relationship through their mother. We conclude the trial court abused its discretion by denying Grandfather's petition for leave to intervene so he could be heard on the merits of his claims.


         The following facts are not disputed by the parties to the mandamus proceeding at issue here: (1) Mother and Father had two children together before Mother's death in March 2019; (2) Father is in jail and awaiting trial on charges alleging that he murdered Mother in March 2019; (3) upon Mother's death, the Department sued Father seeking to terminate Father's parental rights to their two children; (4) in June 2019, Grandfather filed a petition to intervene into the Department's SAPCR; (5) the trial court conducted an evidentiary hearing on Grandfather's request to intervene in July 2019; and (6) the children, the subjects of the SAPCR, were four-years old and four-months old when the trial court issued the ruling at issue here.

         Grandfather's live pleading, his amended petition in intervention, asserts claims of standing under four separate provisions in the Texas Family Code.[3] Under section 102.004(b), one of the sections Grandfather relied on in his pleadings, trial courts "may grant a grandparent or other person . . . deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development."[4] To shorten the opinion, we address whether section 102.004(b) required the trial court to allow Grandfather to intervene before addressing Grandfather's arguments over whether he also has standing to be heard under sections 102.004(a)(1), 153.432(b), and 153.433(a)(3)(C) of the Family Code.

         Three witnesses, Grandfather, Grandmother, and a caseworker employed by the Department and assigned to investigate the SAPCR testified in the hearing on Grandfather's request to intervene.[5] In his testimony, Grandfather stated he had a significant relationship with his grandchildren before his daughter, the children's mother, died. According to Grandfather, his daughter brought his grandchildren to see him at least once a month and sometimes every other week. At times, Grandfather and his daughter along with the two children spent weekends at his home. During the hearing, Grandfather explained that while he and Grandmother had never been married, he wanted to have a relationship with his grandchildren that was protected by having court-ordered rights. On cross-examination, Grandfather agreed that he did not have a role as a parent raising the children before the date his daughter died. He agreed that he had not financially supported the two children, explaining he did not do so because his daughter worked. Grandfather testified that he and Grandmother lived together after their daughter was born but had separated when his daughter was two-years old. He agreed that there were periods over the years when he did not see his daughter because he worked when she was growing up at times in other towns. He explained that his daughter was living with Grandmother when she was killed and agreed that Grandmother had more contact with the grandchildren than he had given his daughter's living arrangements in the months leading up to her death. Grandfather testified that since his daughter's death, he had seen his grandchildren on about three occasions for less than fifteen minutes each, all at Grandmother's home. He claimed he asked Grandmother to allow him to see them more frequently, but she declined. Grandfather described his relationship with his daughter immediately before she died as "pretty good[.]" According to Grandfather, his daughter was fostering a relationship between him and his grandchildren before she died.

         Grandmother was the second witness who testified in the hearing. Grandmother testified that her daughter, with her children, moved in and began living with her around November 2018. She explained that her grandchildren had continued to live with her after their mother died. Grandmother stated that she had allowed the grandchildren to see their Grandfather for less than two hours since March 2019, but she suggested she would have allowed Grandfather to see them longer on those occasions had he wanted to do so. Grandmother testified she did not know whether the court should allow Grandfather to see the grandchildren, but she preferred the Department to decide how often Grandfather should be allowed to see them. Grandmother agreed that Grandfather had asked her to see his grandchildren more often, but she declined to allow any more visits. Explaining why she declined his requests, Grandmother testified the Department told her that no one should be allowed access to the grandchildren or the Department would place the children in foster care. According to Grandmother, she did not think it would be good for the grandchildren to live with Grandfather, but he should, nevertheless, be allowed to visit with them. Grandmother explained that Grandfather had never seen the grandchildren regularly, Grandfather had a "negative" relationship with his daughter before she died, and Grandmother denied Grandfather's claim that he had supported his daughter after leaving her home. On cross-examination, Grandmother agreed she told Grandfather she thought the grandchildren should have a relationship with him and she does not think Grandfather represents any danger to them.

         The Department's caseworker was the third witness in the hearing. According to the caseworker, Grandfather provided all the information she asked him to provide when the Department investigated the case. The caseworker testified that the Department did not object to Grandfather visiting the grandchildren. But then, she explained the Department did not agree the grandchildren should have a relationship with him. The caseworker never explained why.

         The Department's and Grandfather's attorneys then presented the trial court with their arguments on Grandfather's request to intervene. Grandfather's attorney argued the evidence and pleadings established Grandfather possessed standing to intervene. In its argument, the Department's attorney acknowledged neither parent was available to raise the children, Grandmother had done a good job caring for the grandchildren after the Department took them into custody, and that both before and after Mother died, Grandmother had engaged in a parental role in the children's lives. The Department also advised the trial court it would like to try the case in August 2019, but the evidence does not show why it wanted the court to try the case only five months after Mother died. Nonetheless, Grandfather's attorney never stated that he would seek a continuance should the trial court grant his request to intervene. The attorney ad litem appointed to represent the grandchildren and the attorney who represented Father waived their right to present argument.

         When the hearing concluded, the trial court announced that it had decided to deny Grandfather's request and the court struck Grandfather's request to intervene. Immediately thereafter, the Department asked the trial court to set the case for trial on August 28, 2019 and the court granted that request.

         Standard of Review

         At this stage, the only issue before the trial court was whether the Family Code gave Grandfather standing to intervene. Generally, questions of standing require a court to make "a threshold determination of whether a plaintiff has a sufficient justiciable interest in the suit's outcome to be entitled to a judicial determination. Without standing, a court lacks subject matter jurisdiction over the case, and the merits of the plaintiff's claims thus cannot be litigated or decided."[6]

         Here, the merits of Grandfather's claims seeking possessory rights have not yet been decided by any court so the merits of his claims are not before us.[7] So the question we address is not whether Grandfather will ultimately prevail on any of his claims at trial. Instead, the question is whether Grandfather has a right to be heard and present evidence so a factfinder can decide whether his claims have any merit.[8]Because standing presents courts with a question of law, a trial court's ruling on an issue involving standing is reviewed using a de novo standard.[9] To evaluate whether a party has standing to sue, we examine the pleadings filed by the party asserting a legal right together with the evidence in the record that is relevant to the question of the party's standing to determine whether standing exists on the party's claims.[10]

         When the dispute over standing involves the merits of the case-which the Department suggests is what occurred here-we must decide whether the evidence and pleadings show that an issue of material fact exists as related to the trial court's best-interest finding.[11] If the arguments concerning standing do not implicate the merits of the parties' claims, ...

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