in Re Joseph Andre Davis
Opinion
ACCEPTED
01-15-00408-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS 8/5/2015 7:01:51 AM CHRISTOPHER PRINE
CLERK
FIRST COURT OF APPEALS
HOUSTON, TEXAS FILED IN 1st COURT OF APPEALS
RE: Case No. 01-15-00408-CV HOUSTON, TEXAS 8/5/2015 7:01:51 AM
IN RE JOSEPH ANDRE DAVIS CHRISTOPHER A. PRINE Clerk
APPELLANT
V.
FLOYD D. LOPEZ
APPELLEE
From cause No. 2014-58410
in the 245th District Court of
Harris County, Texas
The Honorable Roy L. Moore
__________________________________________________________
MOTION FOR CLARIFICATION, REHEARING, AND REHEARING EN BANC OF THE PER CURIAM AFFIRMANCE AND REQUEST FOR A WRITTEN OPINION AND CERTIFICATION
___________________________________________________________
Appellant, Joseph Andre Davis, pursuant to Rules 47, 48, and 49 of Texas Rules of
Civil Procedures, hereby respectfully move this Court for rehearing, rehearing en
blanc, clarification, certification; written opinion of the Court's July 28, 2015 decision in this matter and request a written opinion, and certification of question
to Texas Supreme Court.
I, Joseph Andre Davis, respectfully request clarification of the Court's order
summarily denying a Writ of Mandamus and Motion to Stay from judgment of the
lower court's decision and their failure to rule on the May 01, 2015 request for a
Writ of Mandamus. I, Joseph Andre Davis, respectfully assert that the Court has
overlooked or misapprehended critical facts and has misapprehended the law. I,
therefore, request a rehearing. I, further, respectfully assert that the case is of
exceptional importance and that this Court's decision to affirm the lower court
conflicts with decisions of the Texas Appellate courts, the Texas Supreme Court
and the U.S. Supreme Court Constitutional and fundamental rights that are
protected by the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution. Therefore, I am requesting a rehearing en banc.
I, Joseph Andre Davis, also respectfully assert that a written opinion would
provide a legitimate, good faith basis for Texas Supreme Court review and request
that this court issue a written opinion regarding its decision to affirm the lower
court.
Finally, Appellant Joseph Andre Davis, requests that this court certify a question
of great public importance to the Texas Supreme Court. My arguments are set
forth below.
I. Motion for Clarification
Because this Court issued only a per curiam affirmance, Appellant Joseph Andre
Davis can only assume that the Court granted summary affirmance under Texas R.
App. P. I request clarification of the Court's position that no preliminary basis for
reversal has been demonstrated.
II. Motion for Rehearing
Because the Court denied Writ of Mandamus Appellant Joseph Andre Davis filed May 01, 2015, and First Court Of Appeals did not provide a written opinion for its decision to affirm the lower court, it is difficult to ascertain the extent of the Court's misapprehending or overlooking of the facts and law. However, it seems that the court must have misapprehended or overlooked numerous matters because of its failure to grant a Writ of Mandamus and its failure to issue a written opinion in so vital a matter. Appellant Joseph Andre Davis raised many arguments of reversible error involving the lower court's lack of Subject Matter Jurisdiction, the application of which raises important State and Federal Constitutional issues that make it no longer equitable to enforce the trial court's earlier order authorizing standing to the maternal grandparents. The 245th District Court did not hear oral argument in this matter nor did it address the merits of any of these issues. Thus, it is apparent that the Court misapprehended or overlooked important matters of fact and law.
III. Motion for Rehearing En Banc
Under the exceptional importance standard, cases involving important precedents likely to affect other cases merit rehearing en banc. The Petitioner Floyd Daniel Lopez who is seeking managing conservatorship has the burden to prove standing. In re Smith, 262 S.W. 3d 463,465 (Texas App. Beaumont 2008)
In re Richard Scheller, Relator, "A trial court abuses it discretion when a grandparent does not overcome the presumption that a parent acts in his or her child's best interest by proving that denial of or access to the child would significantly impair the child's physical or emotional well-being." Derzapf, 219 S.W. at 333 (quoting Texas Family Code Sec. 153.433 (a) (2).
The Trial Court erred because it did not indicate any reason why "it should interfere with the parent-child relationship." In re Mays-Hooper, 189 S.W. 3d at 778 (Texas)
Troxel v.Granville, U.S. 57 (2000). The Court held that a trial court's order for grandparent access unconstitutionally infringed on the parent's fundamental liberty interest where there was no evidence that the parent was unfit, the children's health and well-being would suffer, or that the parent intended to exclude grandparent access entirely.
Parent's fundamental liberty interests in the care, custody, and control of her children is of public importance. It also amounts to issues of exceptional importance within the terms of Constitutions of this State and the United States.
In addition, the error regarding the violations of Due Process Clause of the Fourteenth Amendment to the U.S. Constitution raised in Appellant, Joseph Andre Davis' initial brief is of exceptional importance. The U.S. Supreme Court, the Texas Supreme Court and this Court have all recognized that parental interests are a fundamental right protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution". In re Pensom, 126 S.W. 3d 251,254 (Tex. App. San Antonio 2003, orig. proceeding citing Troxel v. Granville, 530 U.S. 57,65,120 S.Ct 2054,147 L ed 2d 49 (2000). "Texas statutes are intended by the legislature to be in compliance with the Constitutions of this State and the United States." In re K.K.C., 292 S.W. 3d at 792 (citing TEX.GOV'T CODE ANN. 311.021 (1) (Vernon 2005).
"The power of a trial court to adjudicate disputes between a parent and a non- parent, and to enforce its own orders contrary to a parent's decisions concerning her children, constitutes state involvement that implicates the parent's fundamental liberty interests in the care, custody, and control of her children." See Troxel, 530 U.S. at 65-76, 120 S.Ct. 2054. Appellant Joseph Andre Davis has raised the lower court's violation of subject matter jurisdiction in an appeal. This Court's summary affirmance of this alleged error and the precedent established thereby is an issue of exceptional importance that merit en banc review.
Finally, the precedents set by this Court's decision will also affect this Court's future rulings on issues of the Texas statutory and U.S. and Texas Constitutional. The interest of parents in the "care, custody, and control" of their children "is perhaps the oldest of the fundamental liberty interests" recognized by the U.S. Supreme Court. (Troxel v.Granville, 530 U.S. 57,645,120 S.Ct. 2054,147 L Ed.2d 49
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ACCEPTED
01-15-00408-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS 8/5/2015 7:01:51 AM CHRISTOPHER PRINE
CLERK
FIRST COURT OF APPEALS
HOUSTON, TEXAS FILED IN 1st COURT OF APPEALS
RE: Case No. 01-15-00408-CV HOUSTON, TEXAS 8/5/2015 7:01:51 AM
IN RE JOSEPH ANDRE DAVIS CHRISTOPHER A. PRINE Clerk
APPELLANT
V.
FLOYD D. LOPEZ
APPELLEE
From cause No. 2014-58410
in the 245th District Court of
Harris County, Texas
The Honorable Roy L. Moore
__________________________________________________________
MOTION FOR CLARIFICATION, REHEARING, AND REHEARING EN BANC OF THE PER CURIAM AFFIRMANCE AND REQUEST FOR A WRITTEN OPINION AND CERTIFICATION
___________________________________________________________
Appellant, Joseph Andre Davis, pursuant to Rules 47, 48, and 49 of Texas Rules of
Civil Procedures, hereby respectfully move this Court for rehearing, rehearing en
blanc, clarification, certification; written opinion of the Court's July 28, 2015 decision in this matter and request a written opinion, and certification of question
to Texas Supreme Court.
I, Joseph Andre Davis, respectfully request clarification of the Court's order
summarily denying a Writ of Mandamus and Motion to Stay from judgment of the
lower court's decision and their failure to rule on the May 01, 2015 request for a
Writ of Mandamus. I, Joseph Andre Davis, respectfully assert that the Court has
overlooked or misapprehended critical facts and has misapprehended the law. I,
therefore, request a rehearing. I, further, respectfully assert that the case is of
exceptional importance and that this Court's decision to affirm the lower court
conflicts with decisions of the Texas Appellate courts, the Texas Supreme Court
and the U.S. Supreme Court Constitutional and fundamental rights that are
protected by the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution. Therefore, I am requesting a rehearing en banc.
I, Joseph Andre Davis, also respectfully assert that a written opinion would
provide a legitimate, good faith basis for Texas Supreme Court review and request
that this court issue a written opinion regarding its decision to affirm the lower
court.
Finally, Appellant Joseph Andre Davis, requests that this court certify a question
of great public importance to the Texas Supreme Court. My arguments are set
forth below.
I. Motion for Clarification
Because this Court issued only a per curiam affirmance, Appellant Joseph Andre
Davis can only assume that the Court granted summary affirmance under Texas R.
App. P. I request clarification of the Court's position that no preliminary basis for
reversal has been demonstrated.
II. Motion for Rehearing
Because the Court denied Writ of Mandamus Appellant Joseph Andre Davis filed May 01, 2015, and First Court Of Appeals did not provide a written opinion for its decision to affirm the lower court, it is difficult to ascertain the extent of the Court's misapprehending or overlooking of the facts and law. However, it seems that the court must have misapprehended or overlooked numerous matters because of its failure to grant a Writ of Mandamus and its failure to issue a written opinion in so vital a matter. Appellant Joseph Andre Davis raised many arguments of reversible error involving the lower court's lack of Subject Matter Jurisdiction, the application of which raises important State and Federal Constitutional issues that make it no longer equitable to enforce the trial court's earlier order authorizing standing to the maternal grandparents. The 245th District Court did not hear oral argument in this matter nor did it address the merits of any of these issues. Thus, it is apparent that the Court misapprehended or overlooked important matters of fact and law.
III. Motion for Rehearing En Banc
Under the exceptional importance standard, cases involving important precedents likely to affect other cases merit rehearing en banc. The Petitioner Floyd Daniel Lopez who is seeking managing conservatorship has the burden to prove standing. In re Smith, 262 S.W. 3d 463,465 (Texas App. Beaumont 2008)
In re Richard Scheller, Relator, "A trial court abuses it discretion when a grandparent does not overcome the presumption that a parent acts in his or her child's best interest by proving that denial of or access to the child would significantly impair the child's physical or emotional well-being." Derzapf, 219 S.W. at 333 (quoting Texas Family Code Sec. 153.433 (a) (2).
The Trial Court erred because it did not indicate any reason why "it should interfere with the parent-child relationship." In re Mays-Hooper, 189 S.W. 3d at 778 (Texas)
Troxel v.Granville, U.S. 57 (2000). The Court held that a trial court's order for grandparent access unconstitutionally infringed on the parent's fundamental liberty interest where there was no evidence that the parent was unfit, the children's health and well-being would suffer, or that the parent intended to exclude grandparent access entirely.
Parent's fundamental liberty interests in the care, custody, and control of her children is of public importance. It also amounts to issues of exceptional importance within the terms of Constitutions of this State and the United States.
In addition, the error regarding the violations of Due Process Clause of the Fourteenth Amendment to the U.S. Constitution raised in Appellant, Joseph Andre Davis' initial brief is of exceptional importance. The U.S. Supreme Court, the Texas Supreme Court and this Court have all recognized that parental interests are a fundamental right protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution". In re Pensom, 126 S.W. 3d 251,254 (Tex. App. San Antonio 2003, orig. proceeding citing Troxel v. Granville, 530 U.S. 57,65,120 S.Ct 2054,147 L ed 2d 49 (2000). "Texas statutes are intended by the legislature to be in compliance with the Constitutions of this State and the United States." In re K.K.C., 292 S.W. 3d at 792 (citing TEX.GOV'T CODE ANN. 311.021 (1) (Vernon 2005).
"The power of a trial court to adjudicate disputes between a parent and a non- parent, and to enforce its own orders contrary to a parent's decisions concerning her children, constitutes state involvement that implicates the parent's fundamental liberty interests in the care, custody, and control of her children." See Troxel, 530 U.S. at 65-76, 120 S.Ct. 2054. Appellant Joseph Andre Davis has raised the lower court's violation of subject matter jurisdiction in an appeal. This Court's summary affirmance of this alleged error and the precedent established thereby is an issue of exceptional importance that merit en banc review.
Finally, the precedents set by this Court's decision will also affect this Court's future rulings on issues of the Texas statutory and U.S. and Texas Constitutional. The interest of parents in the "care, custody, and control" of their children "is perhaps the oldest of the fundamental liberty interests" recognized by the U.S. Supreme Court. (Troxel v.Granville, 530 U.S. 57,645,120 S.Ct. 2054,147 L Ed.2d 49
(2000). Furthermore, this State has long recognized that the "natural right which exists between parents and their children is one of Constitutional dimensions." See Wiley v. Spratlan, 543 S.W. 2d 349,352 (Tex. 1976); see also Holick v. Smith, 685 S.W. 2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. San Antonio 2003, orig. proceeding). In re K.K.C., 292 S.W.3d at 792(footnote omitted). It, therefore, greatly implicates the important state and federal constitutional issue of the interest of parents in the "care, custody, and control" of their children. An issue involving standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 s.w.2d. 440,443-44 (Tex. 1993). The standard of review applicable to subject matter jurisdiction also applies to standing ld. at 446. Under that standard, Appellee, Floyd Daniel Lopez is required to allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. ld. Under Texas Family Code102.003 (11) a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition is where Appellee, Floyd Daniel Lopez claims to have standing. Deceased Parent " A stepparent who has resided with the child can seek standing upon the death of the child's natural parent: Subsection 102.003 (a) (11) was designed as a "stepparent" statute affording standing to, among others, a stepparent who helps raise a child when the stepparent's spouse , one of the child's parents dies. A traditional application would indicate that upon the death of the mother, as a sole managing conservator of the child, her current husband would have standing. Note, however, that the statutory language is not limited merely to stepparents; literally it can also include an unmarried cohabitant or even an adult sibling of the child of a deceased parent. Appellee Floyd Daniel Lopez fits in neither category nor his daughter, Sandra Lopez, J.A.D.'s mother was not sole managing conservator. We were joint managing conservators, she was the custodial joint managing conservator.
On review, appellate courts "construe the pleadings in favor of the plaintiff and look to the pleader's intent." ld A party's standing to pursue a cause of action is a question of law. See N. Alamo Water Supply Corp. v. Tex Dep't of Health, 839 S.w.2d 455,457 (Tex.App.-Austin 1992, writ denied). Consequently, we review the trial court's actions de novo. Mayhew v. Town of Sunnyvale, 964 s.W.2d 922,928 Tex. 1998).
Appellant Joseph Andre Davis argues Subject Matter Jurisdiction must be decided if this court notices the issue at any time during an appeal as noted, it is settled that question of subject matter jurisdiction cannot be waived, and must be decided if raised at any time, including on the Court's own motion and even for the first time at the oral argument on appeal. See Smith v. City of Santa Fe, 2007- NMSC-055,10,142N.M.786,171 P.3d 500 (Before a court can review the case...jurisdictional issues should always be resolved even if not preserved"); Wilson v. Denver, 1998-NMSC-016, 8, 125 N,tvt 308,961 P.2d 153 ("A jurisdictional defect may not be waived and may be raised at any stage of the proceedings, even sua sponte by the appellate court.");Parental interests are a fundamental right protected by the Due Process Clause of the Fourteenth Amendment that warrant the close consideration of this Court, it would seem that this would also affect this Court’s rulings on appeals from other future appeals of fundamental liberty interests” recognized by the United States Supreme Court. The Texas Supreme Court has held that a child must be in imminent danger of physical or emotional harm for there to be a serious question concerning the child’s physical health or welfare. The grandparents in In the Interest of ALS, filed suit requesting appointment as managing conservators after the death of their son. The court cases show that a challenge to a grandparent’s standing asserted under Texas Family Code § 102.004(a)(1) requires the grandparent to make a prima facie showing of potential harm. The grandparents must be fully prepared to put on evidence of facts that will demonstrate a serious question or concern about the child’s health or welfare. A grandparent seeking custody has an incredibly high burden of proof to meet the standing requirements. This Court’s summary affirmance of the lower court’s decision has significant precedential impact on parent's fundamental liberty interest where there was no evidence that the parent was unfit, that the children's health and well-being would suffer, or that the parent intended to exclude grandparent access entirely, thereby making this an issue of exceptional importance warranting en banc review.
Situations where petitions for a writ of mandamus is appropriate in family law cases include (1) standing and jurisdiction (under UCCJEA or UIFSA, (2) appointment of a receiver in temporary orders, (3) change of the conservator with the right to designate the primary residence of a child in temporary orders, (4) certain discovery disputes, (5) and failure of the trial court to enter an order after rendition (the court’s oral ruling on the record). In these situations, given the issues at stake, it is often appropriate to request that the court of appeals enter an emergency stay prohibiting the trial court from taking any action to enforce or proceed with the challenged order until the court of appeals can decide the mandamus case. The First Court of Appeals denied my child custody Writ of Mandamus of a non-parent (grandparent) custody lawsuit and my Motion of Stay without explanation most situations above were included in my petition for a Writ of Mandamus and a Motion to Stay.
Jurisdiction and Venue of Child Custody Lawsuits
Texas residents: Texas has very specific laws to determine whether a custody case has been filed in the correct court. Disputes arise when one parent does not reside in Texas or one parent does not reside in the same county as the other parent. In such cases, Texas law will determine which the proper court to hear the dispute is.
Texas Residents: It is a fairly simple procedure to determine the proper court for the child custody dispute when all parties and the child reside in Texas. In such case, Texas will have jurisdiction to hear the matter. It is only necessary to determine the proper county the suit should proceed in. Section 103.001 of the Family Code provides that an original suit must be filed in the county the child resides in. Petitioner Floyd Daniel allegedly filed Original Child custody lawsuit on October 07, 2014. 245th District Court's continuing exclusive jurisdiction under Chapter 155 was terminated May 30, 2014.
A child resides in the county where the child's parents reside or the child's parent resides, if only one parent is living. J.A.D. and her only surviving parent, Joseph Andre Davis was residing, at the time the lawsuit was allegedly filed by Petitioner Floyd Daniel Lopez in Harris County 245th District Court on October 7, 2014, in
Montgomery County and continue to reside in Montgomery County. Harris County 245th District Court has been and still is aware of that fact.
If venue of a suit is improper in the court in which an original suit is filed and no
other court has continuing, exclusive jurisdiction of the suit, on the timely motion
of a party other than the petitioner, the court must transfer the proceeding to the
county where venue is proper. This Court’s summary affirmance of the lower
court’s decision has significant precedential impact on parent's fundamental liberty
interest where there was no evidence that the parent was unfit, that the children's
health and well-being would suffer, or that the parent intended to exclude
grandparent access entirely, thereby making this an issue of exceptional
importance warranting en banc review.
Rehearing en banc should be granted because such consideration is necessary to maintain uniformity in the court’s decisions.
1. Motion for rehearing en banc. I express a belief, based on a reasoned and
studied judgment, which the panel decision is of exceptional
importance. I express a belief, based on a reasoned and studied judgment,
that the panel decision is contrary to the following decisions of this court and
that a consideration by the full court is necessary to maintain uniformity of
decisions in this court, other Texas Appellate Courts and State Supreme
Court. (See appendix A)
2. Motion to request a written opinion. I express a belief, based upon a
reasoned and studied judgment, that a written opinion will provide a
legitimate basis for Supreme Court review because this case involves matters
that directly implicate fundamental rights protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
PRAYER
Respondent prays for justice to prevail, that the Court grants this petition
and orders Respondents suit, Cause No. 2014-58410 to be dismissed with
prejudice and that it will not be granted a trial. Relator prays that the court
orders underlying respondents Floyd Daniel Lopez, Irma Olga Jimenez and
their Counsel, Norman Eugene Lester Jr. to pay Relator's reasonable
expenses and attorney's fees including interest incurred in presenting or
opposing the motion, and if no due diligence is shown the court may award to
the prevailing party all costs for inconvenience, harassment, and out-of-
pocket expenses incurred or caused by the subject. Relator prays that
underlying respondents Floyd Daniel Lopez and Irma Olga Jimenez will be denied further possession of, access to and all contact with Relator's minor
child J.A.D. Relator prays that all adverse interlocutory rulings that merged
in the judgment issued by 245th District Court on April 10, 2015 be rendered
null and void including the judgment to pay Amicus Attorney/Guardian
Ad Litem/Parenting Facilitator the sum of $3,062.50 or any sum at
all. Relator prays for general relief and all other relief the court
deems just and proper.
_________________________08/04/2015
Joseph Andre Davis, Pro Se
3714 Pinebrook Hollow Ln.
Spring, Texas 77386
Tel: (832)660-7207
Jdavis1103@hotmail.com
CERTIFICATION OF SERVICE
I certify that a true copy of the above was served on Respondents Floyd
Daniel Lopez and Irma Olga Jimenez's Counsel Norman Eugene Lester Jr,
by E-Mail: HouTxLawyer@aol.com and served by E-File to 245th District
Judge Roy L. Moore and Associate Judge James Cooper in accordance with
the Texas Rules of Civil Procedure on
_________________________
08/04/2015
JOSEPH ANDRE DAVIS, PRO SE
I, ________________certify that I have reviewed the petition and concluded
that every factual statement in the petition is supported by competent evidence included in the appendix or record.
APPENDIX A
A.TEXAS SUPREME COURT CASES WITH OPINIONS
in re Chambless No. 07-0767 ,51 Texas S.Ct. j111, (Texas 2008) (grandparent visitation improperly granted, mother's due process rights disregarded) Mandamus granted.
In re mays-Hooper, 189 S.W. 3d 777 (Texas 2006) (Parents prevail in dispute over grandparent visitation) Supreme Court grants mandamus relief.
In re Ricky Derzapf, No. 06-0669,219 S.W. 3d 327 (Texas 2007) , Texas Supreme Court grants mandamus to vindicate natural parent's superior rights.
CONTROLING U. S. SUPREME COURT PRECEDENT
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L. Ed 49 (2000) ( parents fundamental right to decide who has access to their child.
A plaintiff must have standing for the court to have subject-matter jurisdiction to decide the merits of the plaintiff's claims. See id.; Farmers Tex. County Mut. Ins. Co. v. Romo, 250 S.W.3d 527, 532 (Tex.App.- Austin 2008, no pet.).
The plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Bus., 852 S.W.2d at 446.
The general test for standing is whether there is a real controversy between the parties that will actually be determined by the judicial declaration sought. Id.
Standing focuses on the question of who may bring a lawsuit. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998).
STANDING
To bring an action in Texas, a party must have standing. E.g., DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
Standing is a component of subject-matter jurisdiction. Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999);
OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 735 (Tex. App.-Dallas 2007, pet. denied); see also DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
(“A court has no jurisdiction over a claim made by a plaintiff without standing to assert it.”) (footnote omitted). Thus, standing cannot be waived, and we may examine standing sua sponte if necessary. See OAIC, 234 S.W.3d at 735;
see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445- 46 (Tex. 1993) (noting that standing “may be raised for the first time on appeal by the parties or by the court”).
The general test for standing is whether there is a real controversy between the parties that will actually be determined by the judgment sought. Tex. Ass'n of Bus., 852 S.W.2d at 446.
“To establish standing, a person must show a personal stake in the controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996) (per curiam).
Standing must exist at the time a plaintiff files suit; if the plaintiff lacks standing at the time of filing, the case must be dismissed, even if the plaintiff later acquires an interest sufficient to support standing. Doran v. ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 WL 451879, at *2 (Tex. App.-Dallas Feb. 21, 2008, no pet.) (mem. op.);
Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 703 (Tex. App.-Fort Worth 2006, pet. denied). And the standing doctrine requires a controversy to continue to exist between the parties at every stage of the legal proceedings, including the appeal. City of Dallas v. Woodfield, 305 S.W.3d 412, 416 (Tex. App.-Dallas 2010, no pet.).
Standing is a component of subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993); see also DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
“A court has no jurisdiction over a claim made by a plaintiff without standing to assert it.”). If a party lacks standing to bring an action, the trial court lacks subject-matter jurisdiction to hear the case. Tex. Ass’n of Bus., 852 S.W.2d at 444–45.
“[S]tanding focuses on the question of who may bring an action.” Patterson v. Planned Parenthood, 971S.W.2d 439, 442 (Tex. 1998).
The general test for standing is whether there is a real controversy between the parties that will actually be determined by the judgment sought. Tex. Ass’n of Bus., 852 S.W.2d at 446.
“To establish standing, a person must show a personal stake in the controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996).
Standing to sue may be predicated upon either statutory or common law authority. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252 (Tex. App.—Dallas 2005, no pet.);
see Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001). The common law standing rules apply except when standing is statutorily conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex. App.—El Paso 2007, pet.denied).
Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex.2005) ("Standing to assert a constitutional violation depends on whether the claimant asserts a particularized, concrete injury.")
TEXAS SUPREME COURT CASES
The Standing Doctrine in the Texas Supreme Court
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-446 (Tex. 1993) (standing, as a matter of subject matter jurisdiction, may be raised for the first time on appeal).
Standing by Statute
The Constitution requires standing to maintain suit. Williams v. Lara, 52 S.W.3d 171, 178
B.CASES DECIDED BY TEXAS COURT OF APPEALS
In re B.N.S. No. 247 S. W. 3d 807 (appeal from order granting grandparents possession of their three grandchildren. see Texas Family Code section 153.433, because grandparents did not meet statutory requirements of section 153.433 of the family code, appeal court reversed trial court' s judgment and rendered judgment that grandparent's petition is denied) .
In re J.R.D. No. 05-06-01554 (Texas 2007) (trial court order granting access reversed by court of appeals; grandparents did not meet burden set by statute to rebut parental presumption.
In re D. R. D. No. 05-06-00666 (Texas 2008) (grandparent access denied , no evidence to support applicable standard, i.e., that denial of access would significantly impair the child's physical health or emotional well- being)
In re J.P.C. No. 02-07-00184 (Texas 2008) (death of a parent, grandparent intervention unsuccessful, access order reversed by court of appeals.)
In re Taylor v. Taylor, 254 S.W. 3d S.W. 527 (Texas 2008) (grandparent v. parent SAPCR judgment on jury verdict reversed)
In Interest of C.A.M.M., 243 S.W. 3d 211 (Texas 2007) (SAPCR, non parent custody, grandparents must overcome presumption that parents act in the best interest of child)
Whitworth v.Whitworth 222 S. W. 3d 616 (Texas 2007 no Pet.) (grandparents and siblings lacked standing)
In re J.O., No 04-07-00752 (Texas 2008 No. Pet.) (grandparents as temporary managing conservators, parental presumption affirmed)
In re de Fillippi, No. 04-07-00506, 235 S.W. 3d 319 (Texas 2007) (Children ordered returned to father after mother's death, superior custodial rights compared to grandparents)
In re Sanchez, No. 04-06-00809, 228 S.W. 3d 214 (Texas 2007) (trial court failed to apply law properly, in suit by grandparents to modify parent child relationship writ of mandamus is granted.)
In re Banta v. Texas DFPS, No. 13- 06-00548 (Texas 2007) (grandparent access denied)
In re Baggs v. Becker , No. 03-07-00731 (Texas 2009 pet. denied)
In re L.K.W.G., No. 06-06-00073 (Texas 2007 (Pre se grandparent suit motion for visitation frivolous suit finding, sanctions imposed)
DETERMINATION OF STANDING
Standing, a necessary component of subject-matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
As a necessary component of a court's subject-matter jurisdiction, standing cannot be waived and can be raised for the first time on appeal. Id. at 445-46.
Appellate courts are obligated to review sua sponte issues affecting jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). See also Bowles v. Wade, 913 S.W.2d 644, 647 (Tex. App.-Dallas 1995, writ denied); Centurion Planning Corp., Inc. v. Seabrook Venture II, 176 S.W.3d 498, 508 (Tex. App.-Houston [1st Dist.] 2004, no pet.).
Whether a trial court has subject-matter jurisdiction is a question of law that is reviewed de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
To have standing, the pleader bears the burden of alleging facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Air Control Bd., 852 S.W.2d at 446.
We review the pleadings and the entire record to determine if there is evidence establishing subject-matter jurisdiction. Dallas County Appraisal Dist. v. Funds Recovery,887 S.W.2d 465, 469 (Tex. App.- Dallas 1994, writ denied).
In an appeal from a bench trial, findings of fact carry the same weight as a jury verdict. Walker v. Cotter Prop., Inc., 181 S.W.3d 895, 899 (Tex. App.-Dallas 2006, no pet.).
Unchallenged findings of fact are conclusive on appeal unless the contrary is established as a matter of law or there is no evidence to support the findings. Toles v. Toles, 45 S.W.3d 252, 265 n.6 (Tex. App.-Dallas 2001, pet. denied) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986)).
Where an appellant attacks the trial court's findings of fact on legal or factual sufficiency grounds, the applicable standard of review is the same as that to be applied in the review of jury findings. Walker, 181 S.W.3d at 899.
In evaluating the legal sufficiency of the evidence to support a finding, we must determine whether the evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.-Dallas 2006, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Anything more than a scintilla of evidence is legally sufficient to support a challenged finding. Walker, 181 S.W.3d at 899.
More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of some vital fact. Id.
We review the trial court's conclusions of law de novo to determine whether they are correct. See McIntyre v. Comm'n for Lawyer Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, pet. denied);
Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 906 (Tex. App.-Dallas 2005, pet. denied). Conclusions of law must be upheld on appeal if any legal theory supported by the evidence sustains the judgment, and will be reversed only if the conclusions are erroneous as a matter of law. See McIntyre, 169 S.W.3d at 807.
B. Applicable Law
1. Standing, Generally
In Texas, the standing doctrine requires that (1) there be “a real controversy between the parties,” and (2) that real controversy “will be actually determined by the judicial declaration sought.” Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (quoting Tex. Air Control Bd., 852 S.W.2d at 446).
“The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'justiciable interest' in its outcome.” Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (quoting 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, 441 (2d ed. 1990)).
“The determination of whether a plaintiff possesses standing to assert a particular claim depends on the facts pleaded and the cause of action asserted.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex. App.-Fort Worth 2005, no pet.). See also M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001) (analyzing standing in the context of asserted claim). When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Everett, 178 S.W.3d at 851. The plaintiff must allege and show how he has been injured or wronged within the parameters of the language used in the statute. Id.
STANDING
FOR THE NOT-SO-NUCLEAR FAMILY
ANGELINE BAIN abain@gbfamilylaw.com AIMEE PINGENOT apingenot@gbfamilylaw.com Goranson, Bain, Larson, Greenwald, Maultsby & Murphy, PLLC 8150 North Central Expressway, Suite 1850 Dallas, Texas 75206
(214) 373-7676
KEVIN FULLER kevin@koonsfuller.com
EMILY MISKEL emily@koonsfuller.com KoonsFuller, P.C.
1717 McKinney Avenue, Suite 1500 Dallas, Texas 75202
(214) 871-2727
Innovations - Breaking Boundaries in Custody Litigation The University of Texas School of Law Houston, Texas January 19, 2012
TABLE OF CONTENTS
I. Scope of Article ........................................................................................................................................ 1 II. What is Standing? ..................................................................................................................................... 1 A. Common Law .................................................................................................................................... 1 B. Specific Statutory Authority.................................................................................................................. 1 C. Parental Presumption............................................................................................................................. 2 III. Standing Provisions, Organized by Client ............................................................................................ 2 A. Grandparents ...................................................................................................................................... 2 1. General Standing for Conservatorship Under Texas Family Code §102.003 ................................... 2 2. Standing Under Texas Family Code §102.004 .................................................................................. 3 3. Standing to Intervene ......................................................................................................................... 4 4. Possession and Access by a Grandparent Under the “Grandparent Access Statute” ........................ 5 B. Siblings .................................................................................................................................................. 6 1. Managing Conservatorship ................................................................................................................ 6 2. Possessory Conservatorship .............................................................................................................. 6 3. Access ................................................................................................................................................ 6 C. Aunts, Uncles, and Other Relatives within the Third Degree of Consanguinity .................................. 7 1. Definition of Consanguinity .............................................................................................................. 7 2. Both Parents Deceased ...................................................................................................................... 7 3. Living Parent(s) ................................................................................................................................. 8 4. Possessory Conservatorship .............................................................................................................. 8 D. Stepparents......................................................................................................................................... 8 1. Deceased Parent ................................................................................................................................. 8 2. Living Parents .................................................................................................................................... 9 E. Non-relative ........................................................................................................................................... 9 F. Foster parents ...................................................................................................................................... 11 1. Family Code 102.003(a)(12) ........................................................................................................... 11 2. Family Code 102.004(b) .................................................................................................................. 11 3. Family Code 102.003(c) .................................................................................................................. 11 G. Prospective Adoptive Parent Standing ............................................................................................ 12 1. Family Code 102.003(a)(14) ........................................................................................................... 12 2. Family Code 102.0035 .................................................................................................................... 12 3. In the Interest of S.S.G. ................................................................................................................... 12 H. Same Sex couples ............................................................................................................................ 13 1. Family Code 102.003(a)(9) ............................................................................................................. 13 2. Same Sex Adoption ......................................................................................................................... 16 I. Designated Guardian: Connecting the Probate Code to the Family Code .......................................... 17 J. Standing to Adjudicate Parentage ....................................................................................................... 17 IV. Challenging Standing .......................................................................................................................... 18 V. Appendix A, Texas Family Code Standing Provisions ....................................................................... 19 A. Chapter 102...................................................................................................................................... 19 B. Chapter 153 ......................................................................................................................................... 21 C. Chapter 156 ......................................................................................................................................... 22 D. Chapter 160...................................................................................................................................... 23
i
Under the Texas Constitution, the standing I. Scope of Article requirement is also derived from the open courts Standing is a mandatory requirement, but provision, which contemplates access to the courts fitting your case to one of the many options under only for those litigants suffering an injury. the Family Code can be complicated. The goal of Specifically, the open courts provision provides: this paper is to discuss how to apply standing “All courts shall be open, and every person for an requirements from a client-based perspective. The injury done him, in his lands, goods, person or paper is organized by type of person seeking reputation, shall have remedy by due course of standing (e.g., grandparent, aunt, foster parent), law.” 2 together with the relevant statutes and caselaw Because standing is a component of subject applying to each. The paper was designed to matter jurisdiction, it cannot be waived and may provide useful information, organized by how be raised by any party or by the court on its own you’re most likely to need to access it. motion. The issue of standing may even be raised for the first time on appeal.
II. What is Standing? Standing is determined at the time suit is filed Standing is an issue that family law in the trial court. 3 Standing to sue does not mean practitioners frequently encounter in a very a right to win, but merely a right to be heard in practical way. While knowing the explicit court. 4 requirements of the Family Code is key, it can be useful to have an understanding of the abstract A. Common Law legal doctrines underlying the requirement of The general test for standing in Texas requires standing. The Texas Supreme Court opinion in the that there (a) shall be a real controversy between Texas Ass'n of Business v. Air Control Bd. 1 case the parties, which (b) will be actually determined contains a thorough discussion of the sources of by the judicial declaration sought. 5 Standing the standing requirement, which is summarized requires the claimant to demonstrate a below: particularized injury distinct from that suffered by Standing is a feature of subject matter the general public—there must be an actual jurisdiction, which is essential to the authority of a grievance, not a hypothetical or generalized court to decide a case. Subject matter jurisdiction grievance. 6 This general test incorporates the is never presumed and cannot be waived. The requirements that courts may only decide real standing requirement stems from two limitations cases or controversies brought by a person who on subject matter jurisdiction: the separation of has suffered an actual injury. powers doctrine and the open courts provision. B. Specific Statutory Authority The separation of powers doctrine stems from In family cases, it is usually obvious that there both the United States and Texas constitutions. is a real controversy, but the difficult part of the Under this doctrine, governmental authority vested test is determining which groups of people should in one branch of government cannot be exercised qualify as persons who have suffered an injury. by another, unless expressly permitted by the The Family Code spells out specific categories of constitution. Thus, courts are prohibited from people that the Legislature has determined meet issuing advisory opinions, because that is the this standing requirement. function of the executive branch. The distinctive Standing for Original Suits. Tex Fam. Code feature of an advisory opinion is that it decides an Chapter 102, §§ 102.003-102.007. abstract question of law without binding the parties. An opinion issued in a case brought by a 2 TEX. CONST. art. I, § 13.
3
party without standing is advisory because rather In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas than remedying an actual or imminent harm, the 2008, no pet.)..
4
Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El judgment addresses only a hypothetical injury.
Paso 2002, no pet.).
Texas courts, like federal courts, have no 5 Board of Water Engineers v. City of San Antonio, 155 Tex.
jurisdiction to render such opinions. 111, 114, 283 S.W.2d 722, 724 (1955).
6
Glover v. Union Pac. R.R., 187 S.W.3d 201, 209 (Tex.App.-Texarkana 2006, pet. denied); see Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001); see also In re H.C.S., 219 1 852 S.W.2d 440, 443-48 (Tex. 1993). S.W.3d 33, 34 (Tex. App.-San Antonio 2006, no pet.).
Standing for Modifications. Tex. Fam. Code presumption merely to have standing to bring § 156.002(b): “A person or entity who, at the suit. 14 time of filing, has standing to sue under Chapter 102 may file a suit for modification III. Standing Provisions, Organized by Client in the court with continuing, exclusive A. Grandparents jurisdiction.” Family law cases have increasingly The Family Code is more restrictive than the focused on the rights of grandparents both in constitutional requirement of a justiciable seeking conservatorship and seeking visitation interest. 7 The common-law criteria regarding with their grandchildren. Many standing issiues standing do not apply when the Texas Legislature experienced by grandparents are examined below has conferred standing through a statute. 8 In through statutes and relevant case law. statutory standing cases, the analysis is a straight statutory construction of the relevant statute to 1. General Standing for Conservatorship determine upon whom the Texas Legislature Under Texas Family Code §102.003 conferred standing and whether the claimant in Grandparents, as non-parents litigants, question falls in that category. 9 have limited options to maintain standing to file an original SAPCR seeking custody of a grandchild.
C. Parental Presumption If a grandparent can qualify under any of the In an original suit affecting the parent child fourteen categories of the general standing statute relationship, Texas courts apply a “parental as set forth above, a grandparent could potentially presumption.” The presumption that the best have standing to file for custody under § 102.003. interest of the child is served by awarding custody The most likely applicable categories under the to the parent is deeply embedded in Texas law. 10 “general” standing statute, would be under The parental presumption is codified in the Family §102.003(13) which gives standing to a relative of Code in § 153.131(a). To prevail in an original the child within the third degree of consanguinity suit, a nonparent must rebut the parental (which includes grandparents), if both parents of presumption by showing that the appointment of the child are deceased at the time of filing or the parent would significantly impair the child's through § 102.003(a)(9) which grants standing to a health or development, or that the natural parent person, other than a foster parent, who has had has voluntarily relinquished the child. 11 actual care, control, and possession of the child for Courts have held that modifications are at least six months ending not more than 90 days different from original suits. Since modification preceding the date of the filing of the petition. suits are governed by Chapter 156, the parental Tex.Fam.Code § 102.003(a)(9)(13). Under these presumption contained in Chapter 153 does not statutes, a grandparent may file an original suit for apply. 12 Further, courts have held that the custody. constitution does not require the parental In order to have standing under § presumption to apply in modification actions, 102.003(a)(9), a grandparent must show “actual because there are different public policy care, control, and possession” and it must be concerns. 13 within the specified time frame. §102.003(a)(9)
Most importantly for standing, a nonparent does not specifically speak to grandparents, but does not have to overcome the parental provides means for a grandparent seeking standing to file an original suit. The statute specifically 7 In re A.M.S., 277 S.W.3d 92, 97 (Tex.App.--Texarkana mentions that the time frame need not be 2009, no pet.). continuous and uninterrupted. Tex. Fam. Code 8 Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). §102.003(b). In the case In the Interest of S.S.J., 9 In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.--Houston the child’s mother had died and a maternal [14th Dist.] 2005, orig. proceeding, [mand. denied]); see grandmother was seeking appointment as also Tex. Dep't of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859-61 (Tex. 2001). managing conservator. 15 The child at issue had 10 In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). 11 14 Id. at 342. In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston 12 Id. [14th Dist.] 2008, orig. proceeding). 13 15 See In re M.N.G., 113 S.W.3d 27 (Tex.App.--Fort Worth 153 S.W.3d 132, 137 (Tex.App. – San Antonio, 2004, no 2003, no pet.). pet).
lived with the grandparents under their care, (2) both parents, the custody, and control since birth. The father of the surviving parent, or the managing child argued that even if the grandparents proved conservator or custodian either the requisite time frame required for standing filed the petition or consented to under §102.003(a)(9), they must still overcome the the suit. parental presumption. Id. The court held that the grandparents had standing under §102.003(a)(9). (b) An original suit requesting Nothing in the code or case law requires that a possessory conservatorship may grandparent must go beyond the general not be filed by a grandparent or requirements of 102.003(a)(9) to obtain standing other person. However, the court to allege facts showing that that the appointment may grant a grandparent or other of the parent would significantly impair the child’s person deemed by the court to have physical health or emotional development in order had substantial past contact with to have standing. The parental presumption must the child leave to intervene in a be overcome during a trial on the merits. Id. pending suit filed by a person Conversely, the court In the Interest of authorized to do so under this M.J.G and J.M.J.G., denied standing to subchapter if there is satisfactory grandparents under §102.003(a)(9). 16 The proof to the court that appointment grandparents did not establish the requisite six of a parent as a sole managing month period of actual care, custody, and control conservator or both parents as joint necessary to establish their standing to file an managing conservators would original SAPCR under §102.003(a)(9). significantly impair the child’s Additionally, the evidence at trial showed that the physical health or emotional children’s parents were also living in the house development. with the grandparents. There was no evidence that the parents did not also care for the children. Id. (c) Possession of or access to a child by a grandparent is governed 2. Standing Under Texas Family Code by the standards established by §102.004 Chapter 153.
While grandparents may obtain standing under the general provisions of Texas Family Section 102.004 applies only to SAPCR’s Code §102.003 as set forth above, they may also filed on or after September 1, 2007. Under obtain standing under additional statutes.
§102.004, in the event if a grandparent does not Texas Family Code §102.004 provides as have standing under the general standing statute, follows:
the fact that the person is a grandparent may 102.004: (a) In addition to the general standing to confer standing to file either an original suit or an file suit provided by Section 102.003, a intervention in a pending suit if the grandparent grandparent, or another relative of the can show that the child’s physical health or child related within the third degree by emotional stability would be impaired by consanguinity, may file an original suit remaining with the parents or if the parents requesting managing conservatorship if consent.
there is satisfactory proof to the court that:
Numerous court cases have considered in what circumstances standing may be conferred (1) the order requested upon a grandparent under Texas Family Code is necessary because the child’s §102.004.
present circumstances would A suit by a grandparent requesting significantly impair the child’s managing conservatorship may only be filed when physical health or emotional the child’s present environment presents a serious development; or question concerning the child’s physical health or
16 No. 2-07-105-CV, 2008 WL 344473 (Tex. App.--Fort Worth).
welfare. 17 The Texas Supreme Court has held that to restrict their close relationship with the a child must be in imminent danger of physical or children, the children would suffer serious emotional harm for there to be a serious question physical or emotional harm. This was insufficient concerning the child’s physical health or evidence that the children would be impaired. Id. welfare. 18 The court cases show that a challenge At least one appellate case has held that the to a grandparent’s standing asserted under Texas statute does not require that the grandparent and Family Code § 102.004(a)(1) requires the the child need not have a close bond or a long grandparent to make a prima facie showing of standing relationship if the “significant potential harm. The grandparents must be fully impairment” test is met. In In re M.A.M., the prepared to put on evidence of facts that will court held that the phrase “deemed by the court to demonstrate a serious question or concern about have had substantial past contact” refers to “other the child’s health or welfare. A grandparent person” and not “grandparent.” 21 As such, the seeking custody has an incredibly high burden of mere fact that an intervenor in a pending suit is a proof to meet the standing requirements. biological grandparent confers standing on the The grandparents in In the Interest of ALS, grandparent. Id.
filed suit requesting appointment as managing 3. Standing to Intervene conservators after the death of their son. 19 The Though grandparents may initiate an father had filed for divorce from the child’s original lawsuit seeking appointment as a mother months before his death. The child, father managing conservator, they may not file an and mother sometimes lived at the grandparents’ original lawsuit seeking appointment as a home. The grandparents filed a petition claiming possessory conservator. Texas Family Code they had standing under 102.004(a)(1). The §102.004(b) provides that grandparents may only evidence showed that the mother was bi-polar, had seek appointment as a possessory conservator been under psychiatric care on and off, through intervention. While the statute requires hospitalized, and had threatened suicide. Id. The that any person besides a grandparent seeking grandparents presented an affidavit from an aunt possessory conservatorship have had “substantial attesting to specific instances of abuse of the child past contact with the child,” such requirement is by the mother. There was also evidence of the not necessary for grandparents. 22 Courts have mother’s inability to parent, including failure to held that there is a difference between an original supervise the child, acts of sexual promiscuity and suit and an intervention, thus necessitating the pornography in the home, and unsanitary difference in requirements for standing between conditions in the home. The court held that the both. In the case In the Interest of N.L.G., A Child, grandparents did have standing under § the court held that filing a suit may create 102.004(a). disruption in a child’s relationship with his or her Conversely, in another case where the parents, whereas intervening in a pending case, grandparents sought standing under where the relationship between parent and child is §102.004(a)(1), the court held that the maternal already disrupted, does not create such grandparents did not have standing to maintain an disruption. 23 In the case where a relationship is original suit under §102.004(a)(1). 20 There was no already disrupted, intervention may enhance the evidence to show that the child’s current court’s ability to adjudicate the cause in the best circumstances presented a significant impairment interest of the child. Id. of the child’s physical health or emotional Despite the court’s view that intervention development of violence witnessed by the might enhance a court’s ability to determine the children. Id. The entire premise of the best interest of a child, grandparents do not have grandparents’ argument was that if the court were unfettered access to intervene in any and all custody matters. The grandparents must show that 17 In re R.D.Y., 51 S.W.3d 314, 325 (Tex. App.—Houston [1st Dist.], 2001). 18 21 McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont 19 No. 09-05-062 CV, 2006 WL 75369 (Tex. App -- 2001, no pet.).
22
Beaumont). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont 20 In the Interest of M.J.G. and J.M.J.G, No. 2-07-105-CV, 2001, no pet).
23
2008 WL 344473 (Tex. App.--Fort Worth). 238 S.W.3d 828, 830 (Tex.App.—Fort Worth, 2007).
there is “significant impairment” of the child’s relief authorized under Section physical health or emotional development in order 153.433. to obtain standing in an intervention. 24 Section 153.431 of the Texas Family Code 4. Possession and Access by a Grandparent governs suits for access, whether original or Under the “Grandparent Access Statute”
modification and applies to grandparents, both The Texas Family Code provides a route biological and adoptive. Texas Family Code for grandparents to file suit for possession and §153.432 allows a biological or adoptive access of their grandchildren in sections 153.421 grandparent to request possession of or access to a and 153.432 of the Texas Family Code.
grandchild by filing an original suit or a suit for modification. Courts have held that “significant 153.431: If both of the parents of a child are impairment” is a high threshold for grandparents deceased, the court may consider to overcome. 25 A grandparent may file suit appointment of a parent, sister, or brother requesting only possession of or access to a of a deceased parent as a managing grandchild without regard to whether the conservator of the child, but that appointment of a managing conservator is an issue consideration does not alter or diminish the in the lawsuit. Tex.Fam.Code §153.432(b).
discretionary power of the court.
However, the third prong of this section presents difficulty in many cases as the person 153.432: (a) A biological or adoptive grandparent filing the lawsuit must execute and attach an may request possession of or access to a affidavit on knowledge or belief that contains grandchild by filing:
along with supporting facts, the allegation that (1) an original suit; or denial of possession of or access to the child by (2) a suit for modification as the petitioner would significantly impair the provided by Chapter 156.
child’s physical health or emotional well-being.
(b) A grandparent may request Tex.Fam.Code 153.432(c). The court shall deny possession of or access to a the relief sought and dismiss the lawsuit unless the grandchild in a suit filed for the court determines that the facts stated in the sole purpose of requesting the affidavit, if true, would be sufficient to support the relief, without regard to whether relief authorized under Section 153.433. Id. A the appointment of a managing trial court abuses its discretion if it grants conservator is an issue in the suit.
grandparents access to their grandchildren without meeting this standard. 26 (c) In a suit described by Subsection (a), the person filing the It is important to note that a biological or suit must execute and attach an adoptive grandparent may not request possession affidavit on knowledge or belief of or access to a grandchild if:
that contains, along with supporting facts, the allegation that denial of (1) each of the biological possession of or access to the child parents of the grandchild has:
by the petitioner would (A) died;
significantly impair the child's (B) had the person’s
physical health or emotional wellparental rights terminated; or
being. The court shall deny the (C) executed an affidavit relief sought and dismiss the suit or waiver of interest in child or an unless the court determines that the affidavit of relinquishment of facts stated in the affidavit, if true, parental rights under Chapter 161 would be sufficient to support the and the affidavit designates an
24 25 In re M.J.G., 248 S.W.3d 753, 761 (Tex.App.—Fort In re Derzaph, 219 S.W.3d 327, 331 (Tex. 2007).
26
Worth, 2008). Derzaph, 219 S.W.3d at 333; In re J.M.T., 280 S.W.3d 490, 493 (Tex.App.—Eastland 2009, no pet.).
authorized agency, licensed child- (2) both parents, the surviving parent, or placing agency, or person other the managing conservator or custodian than the child’s stepparent as the either filed the petition or consented to managing conservator for the child’ the suit. and 2. Possessory Conservatorship (2) the grandchild has been An adult sibling may obtain possessory adopted, or is the subject of a conservatorship by intervening in a pending suit: pending suit for adoption, by a 102.004(b): An original suit requesting person other than the child’s possessory conservatorship may not be stepparent. filed by a grandparent or other person.
Tex.Fam.Code §153.434. However, the court may grant a B. Siblings grandparent or other person deemed by the court to have had substantial past contact 1. Managing Conservatorship with the child leave to intervene in a An adult sibling has standing to seek pending suit filed by a person authorized to conservatorship if they can meet one of the do so under this subchapter if there is general standing requirements in Chapter 102. The satisfactory proof to the court that general standing terms most likely to apply to a appointment of a parent as a sole managing sibling are:
conservator or both parents as joint 102.003(a)(9): a person, other than a foster managing conservators would significantly parent, who has had actual care, control, impair the child's physical health or and possession of the child for at least six emotional development.
months ending not more than 90 days preceding the date of the filing of the 3. Access petition; An adult sibling has standing to file a suit 102.003(a)(11): a person with whom the child seeking access to siblings who have been and the child's guardian, managing separated through DFPS actions: conservator, or parent have resided for at 102.0045: (a) The sibling of a child may file least six months ending not more than 90 an original suit requesting access to the days preceding the date of the filing of the child as provided by Section 153.551 if the petition if the child's guardian, managing sibling is at least 18 years of age. conservator, or parent is deceased at the (b) Access to a child by a sibling of the child is time of the filing of the petition; or governed by the standards established by 102.003(a)(13): a person who is a relative of Section 153.551.
the child within the third degree by 153.551: (a) The sibling of a child who is consanguinity, as determined by Chapter separated from the child because of an 573, Government Code, if the child's action taken by the Department of Family parents are deceased at the time of the and Protective Services may request access filing of the petition. to the child by filing:
102.004(a): In addition to the general standing (1) an original suit; or to file suit provided by Section 102.003, a (2) a suit for modification as provided by grandparent, or another relative of the Chapter 156. child related within the third degree by (b) A sibling described by Subsection (a) may consanguinity, may file an original suit request access to the child in a suit filed for requesting managing conservatorship if the sole purpose of requesting the relief, there is satisfactory proof to the court that: without regard to whether the appointment (1) the order requested is necessary of a managing conservator is an issue in because the child's present the suit. circumstances would significantly (c) The court shall order reasonable access to impair the child's physical health or the child by the child's sibling described by emotional development; or Subsection (a) if the court finds that access is in the best interest of the child.
156.002(c): The sibling of a child who is (2) the number of generations between the separated from the child because of the relative and the nearest common actions of the Department of Family and ancestor. Protective Services may file a suit for (c) An individual's relatives within the third modification requesting access to the child degree by consanguinity are the in the court with continuing, exclusive individual's: jurisdiction. (1) parent or child (relatives in the first Although only the first section contains an explicit degree); requirement that the sibling be at least 18 years of (2) brother, sister, grandparent, or age, one court has held that minor siblings do not grandchild (relatives in the second have any standing to seek access: “Although degree); and section 153.551 establishes a statutory right to (3) great-grandparent, great-grandchild, seek sibling access, section 102.0045 requires the aunt who is a sister of a parent of the sibling requesting access to be at least 18 years of individual, uncle who is a brother of a age. Since [the minor child] is not at least eighteen parent of the individual, nephew who is years of age, she does not have standing to seek a child of a brother or sister of the sibling access.” 27 individual, or niece who is a child of a brother or sister of the individual C. Aunts, Uncles, and Other Relatives within (relatives in the third degree).
the Third Degree of Consanguinity Note: A cousin is not a relative within the third 1. Definition of Consanguinity degree of consanguinity. 28 A great-aunt or great- Tex. Gov. Code § 573.022. Determination of uncle is not a relative within the third degree of Consanguinity: consanguinity. 29 (a) Two individuals are related to each other Section 102.004 requires the relationship to by consanguinity if: be within three degrees of consanguinity, not three (1) one is a descendant of the other; or degrees of affinity. 30 While often used together, (2) they share a common ancestor. consanguinity and affinity are distinct concepts (b) An adopted child is considered to be a with different definitions. 31 Courts presume the child of the adoptive parent for this Texas Legislature was familiar with the definitions purpose. and chose to permit petitions filed by individuals Tex. Gov. Code § 573.023. Computation of related within three degrees of consanguinity, but Degree of Consanguinity: not within three degrees of affinity. 32 Therefore, a (a) The degree of relationship by person who is related by marriage but who does consanguinity between an individual and not share a common ancestor with the child cannot the individual's descendant is determined qualify for standing under the sections of the by the number of generations that separate Family Code requiring consanguinity. them. A parent and child are related in the first degree, a grandparent and grandchild 2. Both Parents Deceased If both of a child’s parents are deceased, then a in the second degree, a great-grandparent relative within the third degree of consanguinity and great-grandchild in the third degree can have standing under the following sections:
and so on.
102.003(a)(13): a person who is a relative of (b) If an individual and the individual's relative the child within the third degree by are related by consanguinity, but neither is consanguinity, as determined by Chapter descended from the other, the degree of 573, Government Code, if the child's relationship is determined by adding: (1) the number of generations between the individual and the nearest common 28 Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App. 2002).
ancestor of the individual and the 29 In re N.L.D., No. 06-10-00132-CV (Tex.App.—Texarkana individual's relative; and 2011).
30
In re A.M.S., 277 S.W.3d 92, 98 (Tex.App.--Texarkana 2009, no pet.).
27 31 In re S.L.M., No. 4-07-00566-CV (Tex.App.—San Id.
32
Antonio June 18, 2008) (memo op.). Id.
parents are deceased at the time of the he or she has had substantial past contact with a filing of the petition. child: 153.431: If both of the parents of a child are 102.004(b): An original suit requesting deceased, the court may consider possessory conservatorship may not be appointment of a parent, sister, or brother filed by a grandparent or other person. of a deceased parent as a managing However, the court may grant a conservator of the child, but that grandparent or other person deemed by the consideration does not alter or diminish the court to have had substantial past contact discretionary power of the court. with the child leave to intervene in a pending suit filed by a person authorized to 3. Living Parent(s)
do so under this subchapter if there is If a child has a living parent or parents, a satisfactory proof to the court that relative may be able to have standing, if they can appointment of a parent as a sole managing show that the parent(s) consented or that the conservator or both parents as joint child’s circumstances are harmful:
managing conservators would significantly 102.004(a): In addition to the general standing impair the child's physical health or to file suit provided by Section 102.003, a emotional development.
grandparent, or another relative of the The Chavez 36 case discusses this relaxed standing child related within the third degree by requirement: Generally, an intervenor must show consanguinity, may file an original suit standing to maintain a suit in his own right in requesting managing conservatorship if order to intervene. 37 This showing requires that there is satisfactory proof to the court that:
the intervenor have some present justiciable (1) the order requested is necessary interest in the subject matter of the suit.38 because the child's present However, Section 102.004(b) of the Family Code circumstances would significantly specifically provides that grandparents who have impair the child's physical health or substantial past contact with the child may be emotional development; or granted leave to intervene in a SAPCR. Thus, a (2) both parents, the surviving parent, or grandparent need not have standing sufficient to the managing conservator or custodian institute a SAPCR in their own right in order to either filed the petition or consented to intervene in a pending SAPCR. 39 This relaxed the suit.
standing rule promotes the overriding policy in all For standing, there is no requirement that the SAPCR suits, that of protecting the best interest of relative prove an immediate danger. 33 That the child.
requirement does not appear in the current statute, and it is assumed that the Legislature excluded the D. Stepparents immediacy requirement for a purpose. 34 The Vogel 1. Deceased Parent
court found that the father’s long-term alcoholism A stepparent who has resided with the child and recent drinking, as well as testimony that it can seek standing upon the death of the child’s would be harmful for the child to live with the natural parent: father, were sufficient for the trial court to find 102.003(11): a person with whom the child that the child’s present circumstances, if he were and the child's guardian, managing to live with the father, would significantly impair conservator, or parent have resided for at his physical health or emotional development. 35 least six months ending not more than 90 4. Possessory Conservatorship days preceding the date of the filing of the A relative within the third degree of petition if the child's guardian, managing consanguinity may file suit seeking possessory conservatorship by intervening in a pending suit, if 36 Chavez v. Chavez, 148 S.W.3d 449, 457 (Tex.App.--El Paso 2004, no pet.).
37
Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex.App.-
33 In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston El Paso 1995, orig. proceeding); McCord v. Watts, 777 [14th Dist.] 2008, orig. proceeding). S.W.2d 809, 812 (Tex.App.-Austin 1989, no writ). 34 38 Id. Segovia-Slape, 893 S.W.2d at 696. 35 39 Id. See Segovia-Slape, 893 S.W.2d at 696.
conservator, or parent is deceased at the relinquish care of the child in order for the other time of the filing of the petition. person to have standing, and described facts more Subsection 102.003(a)(11) was designed as a similar to the previous T.W.E. case. 47 "stepparent" statute, affording standing to, among There is a line of cases that holds that it is others, a stepparent who helps raise a child when very difficult for a person to get standing under the stepparent's spouse—one of the child's this provision if the child’s parent(s) were also parents— dies. 40 A traditional application would living with the children. The M.J.G. case held that indicate that upon the death of the mother, as a “Even though the children were living in the sole managing conservator of the child, her current [grandparents’] home and the [grandparents] husband would have standing. 41 performed day-to-day caretaking duties for the Note, however, that the statutory language is children, the children's parents were also living not limited merely to stepparents; literally it can with the children in the home, and there was no also include an unmarried cohabitant or even an evidence that [the parents] did not also care for the adult sibling of the child of a deceased parent. 42 children or that [the parents] had abdicated their parental duties and responsibilities to the 2. Living Parents grandparents.” 48 The court in that case found that A stepparent who has resided with the child the grandparents failed to show six months actual for six months has standing to bring suit:
care, control, and possession sufficient to establish 102.003(a)(9): a person, other than a foster standing.
parent, who has had actual care, control, There is no bright line rule in the cases and possession of the child for at least six showing exactly how much the biological parent months ending not more than 90 days must have relinquished control in order for the preceding the date of the filing of the other resident of the household to have standing to petition.
seek conservatorship. However, courts are looking Although the stepparent would not have to for some actual relinquishment of caregiving overcome the parental presumption to gain duties by the biological parent. It is clear that in standing, in order to prevail in an original suit, the order to prevail on the case, the non-parent would stepparent must overcome the parental have to overcome the parental presumption, but it presumption. For example, even though a husband is unclear how much courts are expecting with finds out that he is not the biological father of the regards to merely obtaining standing.
child, he has standing to sue for appointment as managing conservator because he had actual E. Non-relative possession and control of the child for six months The provisions governing standing for a nonimmediately before the suit was filed. 43 Because relative are found in §102.003(a) or §102.004(b). of the parental presumption, however, a stepfather or live-in boyfriend of six months does not litigate 102.003(a): An original suit may be filed at custody against the mother on equal terms. 44 any time by:
The statute does not require that the person …….
asserting standing demonstrate he had exclusive (2) the child through a representative control of the child. 45 However, the person must authorized by the court; have some legal right of control over the child or (3) a custodian or person having the right of authority to make decisions on behalf of the visitation with or access to the child appointed child. 46 The dissent disagreed with the holding by an order of a court of another state or that the biological parent must somehow country;
(4) a guardian of the person or of the estate of 40 Id. at 358. the child; 41 Id. (5) a governmental entity; 42 Id. at 356 (6) an authorized agency; 43 T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex.App.—San (7) a licensed child placing agency;
Antonio 1992, no writ). 44 Id. at 809. 45 47 In re K.K.C., 292 S.W.3d 788, 793 (Tex.App.--Beaumont Id. at 794-95.
48
2009, orig. proceeding). In re M.J.G., 248 S.W.3d 753, 758-59 (Tex.App.--Fort 46 See Id. Worth 2008, no pet.).
(8) a man alleging himself to be the father of conservator or both parents as joint a child filing in accordance with Chapter 160, managing conservators would significantly subject to the limitations of that chapter, but impair the child's physical health or not otherwise; emotional development. (9) a person, other than a foster parent, who has had actual care, control, and possession of For a non-relative to meet this burden, the child for at least six months ending not such individual must show that he or she has had more than 90 days preceding the date of the substantial past contact with the child. However, filing of the petition; the term “substantial past contact” is not defined (10) a person designated as the managing by statute or case law. conservator in a revoked or unrevoked In the Interest of H.B.N.S., a Child, affidavit of relinquishment under Chapter 161 involved the termination of parental rights and or to whom consent to adoption has been adoption proceeding where two unrelated couples given in writing under Chapter 162; were attempting to adopt a child. The court held (11) a person with whom the child and the that the parents of the child’s babysitter had child's guardian, managing conservator, or standing to intervene based upon their substantial parent have resided for at least six months past contacts with the child. 49 In the case, the ending not more than 90 days preceding the birth mother allowed the child to go home from date of the filing of the petition if the child's the hospital after birth with the Bolton family. guardian, managing conservator, or parent is While they did not intend to adopt her, the Boltons deceased at the time of the filing of the took her home and cared for her. During that year, petition; they hired a babysitter to care for the child and the (12) a person who is the foster parent of a babysitter would take the child to her parent’s child placed by the Department of Family and home. Two years later, the birth mother executed Protective Services in the person's home for at an Affidavit of Relinquishment of Parental Rights least 12 months ending not more than 90 days and designated the Boltons as managing preceding the date of the filing of the petition; conservators of the child. The Boltons then file a (13) a person who is a relative of the child termination and adoption suit. The babysitter’s within the third degree by consanguinity, as parents, the Shultzes, petitioned for intervention determined by Chapter 573, Government and were ultimately granted standing after Code, if the child's parents are deceased at the showing that they provided ongoing care for time of the filing of the petition; or extensive periods of time; took the child on family (14) a person who has been named as a vacations; had the child participate in family prospective adoptive parent of a child by a celebrations and holidays; provided the child with pregnant woman or the parent of the child, in a room in their home and lake house; and were the a verified written statement to confer standing ones contacted by the school and had authority to executed under Section 102.0035, regardless pick up the child from school. 50 Ultimately, the of whether the child has been born. appellate court terminated the birth parents’ rights and appointed the Shultzes as the child’s sole Section 102.004(b) allows non-parents to managing conservator and the Boltons as the intervene in a pending SAPCR. possessory conservator based upon their extensive 102.004(b): An original suit requesting involvement in the child’s life.
possessory conservatorship may not be The case, In the Interest of N.B.B. and filed by a grandparent or other person. J.B.B. extending standing to a neighbor of a parent However, the court may grant a under §102.004(b). 51 The case involved an grandparent or other person deemed by the unmarried mother and father who had two court to have had substantial past contact children, one with Downs Syndrome. The parents with the child leave to intervene in a
49
pending suit filed by a person authorized to 2007 Tex.App. LEXIS 5541 (Tex.App.—Houston [14th do so under this subchapter if there is Dist.] 2007, pet. denied, Nov. 9, 2007).
50
Id.
satisfactory proof to the court that 51 2007 Tex.App. LEXIS 8639 (Tex.App. San Antonio Oct.
appointment of a parent as a sole managing 31, 2007).
separated and the mother moved away from the the child. The standing to file suit under this father and placed the child with Downs Syndrome subsection applies only to the adoption of a child in a residential facility and let the other child live who is eligible to be adopted. with a neighbor when she found out that she was terminally ill. Upon the mother’s death, the father An original suit may be filed at any time by a came to Texas to take possession of the children, person who is the foster parent of a child placed but the neighbor refused to surrender the child in by the Department of Protective and Regulatory her possession. The father brought a SAPCR Services in the person’s home for at least 12 action and the neighbor filed a counterpetition. months ending not more than 90 days preceding Upon review, the appellate court confirmed the the date of the filing of the petition. Tex. Fam. trial court and appointed the father and the Code § 102.003(a)(12). In computing the time neighbor joint managing conservators of the child necessary for standing under subsection (a)(12), and granted the neighbor the exclusive right to “the court may not require that the time be designate the residence of the children. It is continuous and uninterrupted but shall consider interesting to note that the court found that besides the child’s principal residence during the relevant the neighbor having had substantial past contact time preceding the date of commencement of the with the children, that appointing the father as a suit.” Tex. Fam. Code § 102.003(b). The elements sole managing conservator would significantly of residency for this section are: (1) a fixed place impair the children’s health and emotional of abode within the possession of the party; (2) development. occupied or intended to be occupied consistently over a substantial period of time; (3) which is F. Foster parents permanent rather than temporary. 52 Foster parents may obtain standing through Notwithstanding the time requirements of Texas Family Code §102.003(a)(12), §102.003(c)
Subsection (a)(12), a person who is the foster or §102.004(b). An original suit may be filed as parent of a child may file a suit to adopt a child for follows:
whom the person is providing foster care at any 1. Family Code 102.003(a)(12) time after the person has been approved to adopt A person who is the foster parent of a child the child. The standing to file suit under this placed by the Department of Family and subsection applies only to the adoption of a child Protective Services in the person's home for at who is eligible to be adopted. Tex. Fam. Code § least 12 months ending not more than 90 days 102.003(c). The filing of a petition to terminate preceding the date of the filing of the petition. parental rights by foster parents who have 2. Family Code 102.004(b) standing under Section 102.003(a)(12) grants a An original suit requesting possessory trial court jurisdiction to terminate those rights conservatorship may not be filed by a grandparent even after the trial court loses jurisdiction over the or other person. However, the court may grant a petition to terminate filed by the Texas grandparent or other person deemed by the court Department of Family and Protective Services. 53 to have had substantial past contact with the child However, if the foster parents’ plea in intervention leave to intervene in a pending suit filed by a is contingent on upon, and not independent of, the person authorized to do so under this subchapter if allegations of the Texas Department of Family and there is satisfactory proof to the court that Protective Services, and the foster parents have no appointment of a parent as a sole managing pending claims for affirmative relief, the foster conservator or both parents as joint managing parents lose standing if the Texas Department of conservators would significantly impair the child's Family and Protective Services nonsuits its physical health or emotional development. claims. 54
3. Family Code 102.003(c)
Notwithstanding the time requirements of 52 Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El Subsection (a)(12), a person who is the foster Paso 2002, no pet.).
53
parent of a child may file a suit to adopt a child for In re C.V.G., 112 S.W.3d 180, 184 (Tex. App.—Houston whom the person is providing foster care at any [1st Dist.] 2003, orig. proceeding).
54
In re Roxsane R., 249 S.W.3d 764, 773-74 (Tex. App.—
time after the person has been approved to adopt Fort Worth 2008, orig. proceeding).
G. Prospective Adoptive Parent Standing revocation of the statement must be in writing and must be sent by certified mail, return receipt 1. Family Code 102.003(a)(14)
requested, to the prospective adoptive parent. Tex.
An original suit may be filed at any time by a Fam. Code §102.0035(f). On filing with the court person who has been named as a prospective proof of the delivery of the revocation of a adoptive parent of a child by a pregnant woman or statement to confer standing under Subsection (f), the parent of the child, in a verified written the court shall dismiss any suit affecting the statement to confer standing executed under parent-child relationship filed by the prospective Section 102.0035, regardless of whether the child adoptive parent named in the statement. Tex. Fam.
has been born. Tex. Fam. Code §102.003(a)(14).
Code § 102.0035(g).
2. Family Code 102.0035 A pregnant woman or a parent of a child may 3. In the Interest of S.S.G.
In the Interest of S.S.G. considered issues execute a statement to confer standing to a involving prospective adoptive parents that took prospective adoptive parent as provided by possession of the child at issue soon after its Section 102.0035 to assert standing under Section birth. 56 The prospective adoptive parents filed a 102.003(a)(14). A statement to confer standing SAPCR seeking termination of the parent-child under Section 102.0035 may not be executed in a relationship and adoption of the child. Id. The suit brought by a governmental entity under trial court terminated the parental rights and Chapter 262 or 263. Tex. Fam. Code § appointed the prospective adoptive parents as 102.0035(a). The statement may not be used for managing conservators. The Court of Appeals any purpose other than to confer standing in a reversed and denied relief to the appellants and proceeding for adoption or to terminate the parentappellants filed a petition for review with the child relationship. Tex. Fam. Code §102.0035(c).
Texas Supreme Court which was denied.
A statement to confer standing is not required Appellants, the prospective adoptive parents, had in a suit brought by a person who has standing to possession of the child during the entire period.
file a suit affecting the parent-child relationship Following the denial by the Supreme Court, under Sections 102.003(a)(1)-(13) or any other appellants filed a new SAPCR under law under which the person has standing to file a §102.003(a)(9), based on the duration of time the suit. Tex. Fam. Code § 102.0035(e). For a child had resided with the parties, thereby statement to confer standing to be effective, a affording appellants standing.
parent-child relationship must exist and may be as The trial court in the second SAPCR pleading follows. A father-child relationship is established noted an exception to §102.003(a)(9), which between a man and a child by an unrebutted provides that “if possession is maintained in presumption of paternity; an unrevoked and violation of a valid court order, that possession unchallenged acknowledgment of paternity; an does not confer standing to bring suit affecting the adjudication of paternity; the man’s adoption of parent-child relationship.” Id. The Court held that the child; or his consent to his wife’s use of the prospective adoptive parent’s continued assisted reproduction. Tex. Fam. Code § possession was not in violation of a court order 160.201(b). An alleged father is a man who due to the fact that neither the trial court nor the alleges himself to be, or is alleged to be, the Court of Appeals entered an order requiring genetic father or a possible genetic father of the appellants to return the child to the biological child, but whose paternity has not been parents, and therefore, because they had actual determined. Tex. Fam. Code § 101.0015(a). A care, custody and possession of the child for six statement to confer standing executed by a man as months not ending more than ninety days prior to an alleged father does not confer standing. 55 A the filing of the petition, appellants had standing person who executes a statement to confer to file the second suit. Id.
standing may revoke the statement at any time before the person executes an affidavit for voluntary relinquishment of parental rights. The
55 56 In re Mata, 212 S.W.3d 597, 608 (Tex. App.—Austin 208 S.W.3d 1, 2006 Tex.App. LEXIS 1544 2006, orig. proceeding). (Tex.App.Amarillo 2006).
H. Same Sex couples the child’s school record without T.S.’s agreement. The following month K.V. filed suit 1. Family Code 102.003(a)(9)
seeking to be appointed joint managing Same sex partners most frequently utilize conservator or the child or in the alternative to §102.003(a)(9) to attempt to acquire standing.
adopt the child. Since K.V. was not the biological The section states that to establish “actual care, parent of the child, she asserted standing to sue for control, and possession” as required by section conservatorship under section 102.003(a)(9) as a 102.003(a)(9), the party must demonstrate (i) more person who had “actual care, control, and than temporary or occasional possession, though it possession of the child for at least six months need not by exclusive, and (ii) more than the ending not more than 90 days preceding the date control “implicit in having care and possession of of the filing of the petition.” Tex. Fam. Code Ann the child.” 57 To establish the six month §102.003(a)(9).
requirement of “actual care, control, and K.V. appealed the trial court’s decision possession of the child” as required by section that she lacked standing to sue for 102.003(a)(9), some cases say that the party must conservatorship, maintaining that she satisfied the demonstrate the child “principally resided” with standing requirement by virtue of her weekly him, though the residency of the child with the overnight possessions of the child and possessions party need not be continuous and uninterrupted.58 on “some holidays”, alternate weekends, and However, visitation in accordance with the alternate Sundays. Noting that the court in Doncer Standard Possession Order found in section compared the term “principal residence” as used 153.312 of the family code may satisfy the in the determination of the six month possession standing requirement. 59 Whether a party satisfies requirement in §102.003(a)(9) with the term the standing requirement under section “primary residence” as defined in a joint 102.003(a)(9) is necessarily fact specific and managing conservatorship in connection with determined on a case by case basis. 60 Several whom the child lives once conservators have been cases, as discussed below, have considered appointed, the Appellate Court concluded the term standing issues for same sex couples.
“principal residence” means a “fixed place of a) In re M.K.S.-V.
abode, occupied consistently over a substantial In re M.K.S.-V., involved dismissal of a period of time, which is permanent rather than partner’s (K.V.) suit for conservatorship or temporary.” K. V. argued that her home was a adoption of a child born in 2004 to the ex-partner principal residence of the child because it was “a (T.S.) who became pregnant with the child fixed place of abode” that the child occupied through artificial insemination by a sperm donor. 61 consistently and in a permanent fashion, in The partners co-parented the child for over a year accordance with the possession agreement. The when the relationship ended and T.S. moved out Appellate Court held that an intent that the child with the child. The partners set up an agreed occupy K.V.’s home consistently over a written schedule for the child to visit K.V.
substantial period of time alone established only overnight once a week, alternate Sunday the six month requirement of section afternoons, alternate weekends beginning on 102.003(a)(9), and to establish standing, K.V. also Friday afternoons during the school year and had to establish that she exercised more than the Thursday afternoons in the summer and certain control implicit in having care and possession of holidays. The schedule began in August of 2005 the child.
and continued until April of 2007 when T.S.
The Appellate Court placed emphasis on discontinued the visits because K.V. had accessed the fact that even though the “possession 57 agreement” shared characteristics of a standard See K.K.C., 292 S.W.3d 788 (Tex.App. -Beaumont 2009, orig. proceeding); In re M.J.G., 248 S.W.3d 753, 758-59 possession order, nothing in the record showed (Tex.App.-Fort Worth 2008, no pet.). that it was accompanied by the rights a parent 58 Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.- El conservator enjoys “at all times,” or that T.S. Paso 2002, no pet.); See Tex. Fam. Code Ann. §102.003(b). relinquished or shared any of her rights as a 59 See Doncer, 81 S.W.3d at 362. parent. The Appellate Court thus rejected K.V.’s 60 In re M.P.B., 257 S.W.3d 804, 809 (Tex.App. - Dallas 2008, no pet.).
argument that she established standing to sue for 61 301 S.W.3d 460 (Tex.App.—Dallas 2009).
conservatorship by virtue of her possession Id. Haley and Smith separated in February 2008, agreement. and Smith filed a motion to vacate the agreed The Dallas Appellate Court, on December order, and Haley filed a petition to modify the 1, 2009, withdrew the August opinion, vacated the order. Id. The trial court denied Smith’s motion to judgment of that date, and issued a new opinion vacate and she filed for mandamus arguing that finding that the trial court erred in determining the 2002 agreed order naming Haley as joint that K.V. did not meet the standing requirement. 62 managing conservator was void because Haley In finding that K.V. did establish the six month lacked standing. Id. The Appellate Court period of actual care, custody, and control conditionally granted Smith’s petition for writ of requisite to establish her standing to file an mandamus and directed the trial court to vacate its original SAPCR, the Dallas Court of Appeals orders. In doing so, the appellate court noted that focused on the fact that the child had her own at the temporary hearing in 2008, Haley room in K.V.’s house where the child kept toys, acknowledged that she did not have standing at the movies, a television and an aquarium. Id. K.V. had time the original petition was filed pursuant to modified her house by building a wrap around section 102.003(a)(9), in that she was not “a deck with gates to create a safe environment for person, other than a foster parent, who has had the child, would pick up the child from school on actual care, control, and possession of the child for occasions when the child was sick and then at least six months ending not more than 90 days purchase and administer medication. Id. K.V. was preceding the date of the filing of the original listed as a parent on the child’s school records, petition.” Id. at 466. When Haley and Smith filed attended school activities and the teachers were the joint petition, the twins were four months old aware that K.V. picked up the child during K.V.’s so the six month requirement had not been met. Id. periods of possession. Id. Witnesses testified that The Appellate Court also rejected Haley’s T.S. had referred to K.V. as the child’s mother and argument that because she and Smith had a written treated K.V. as a parent. Id. K.V. established a agreement concerning conservatorship college fund for the child and after the relationship incorporated into the agreed order, that Smith’s with T.S. ended, the couple still attended church standing was enough to confer jurisdiction. Haley with the child as a family unit. Id. The Appellate relied on section 153.007(b) of the Texas Family Court stated that the record did not suggest that Code, providing that the court “shall render an the pattern of possession and care giving was order in accordance with the parenting plan.” intended to be a temporary arrangement. Id. “To Regardless, the Appellate Court stated that section the contrary, the possession agreement and the 153.007(b) presupposes standing, and Haley had parties’ actions evidenced intent that the child not established standing under the Family Code’s occupy K.V.’s home consistently over a general standing statute or under a more specific substantial period of time.” Id. Family Code statute. Id. at 466. b) In re Smith Haley then filed an original petition in In In re Smith, Charlena Smith gave birth 2008 seeking to be named as sole managing to twins conceived by artificial insemination from conservator under Chapter 153 of the Texas an anonymous donor, and when the twins were Family Code arguing standing to do so pursuant to four months old, Smith and her same sex partner, §102.003(a)(9). 64 The trial court dismissed the Sheila Haley, filed a joint SAPCR petition.63 In petition for lack of standing and made written October 2002, when the twins were five months findings of fact and conclusions of law as set forth old, the trial court signed an Agreed SAPCR as follows: Order appointing Smith and Haley as joint “1. There is no evidence that, managing conservators and gave them equal during the relevant time period, the parent, possession of the children at all times and stating Ms. Smith, totally abdicated her parental “that no stated provisions for possession and responsibilities over the children to the non access are necessary in light of the fact that the parent, Ms. Haley. parties cohabited in the same primary residence.”
62 64 In re M.K.S.-V., 05-08-00568-CV (Tex.App.-Dallas 2009). In the Interest of C.T.H.S. and C.R.H.S., 311 S.W.3d 204 63 262 S.W.3d 463 (Tex.App.-Beaumont 2008) (Tex.Civ.App.—Beaumont 2010).
2. There is no evidence that, during context with the responsibilities and liberty the relevant time period, the parent Ms. interests of the parent. Id. In giving effect to the Smith did not exercise some care for, some words “actual care,” the appellate court considered control over or some supervision over the §102.003(a)(11) which provides standing for a children at the same time that the non person with whom the child has resided for six parent Ms. Haley exercised some care for, months if the parent is deceased at the time suit is some control over and some supervision filed. Id. The appellate court theorized that a over the children. person living with a parent and a child may care 3. There is no evidence that, during for the child over a period of time but would not the relevant time period, the non parent acquire standing by providing the care normally Ms. Haley exercised exclusive care for, associated with residing in the same household. Id. control over and supervision over the at 209. children to the exclusion of the parent Ms. The appellate court compared the case to Smith. In re M.J.G., 65 where the Fort Worth court of 4. A parent must totally abdicate appeals denied standing to grandparents holding their parental responsibilities to another that although the children lived with the person during the relevant time period grandparents since birth and the grandparents before that other person can acquire performed day to day care taking duties, the standing to file an original SAPCR with parents also lived with the grandparents and had respect to that parent’s child. not “abdicated their parental duties and 5. A parent’s allowing of a non responsibilities to the grandparents.” Id. at 209, parent to have some care for, some control citing In re M.J.G. over and some supervision over the Haley argued the M.J.G. decision parent’s child during the relevant time incorrectly construed §102.003(a)(9) and that a period is insufficient for the non parent to parent often lives with others and that the best acquire standing to file an original SAPCR interest of the children should be the primary with respect to that child. consideration. Id. The appellate court disagreed 6. If a parent, to any extent with Haley and stated that “standing does not turn whatsoever, retains or exercises any care on whether a trial court agrees or disagrees with a for, any control over or any supervision parent’s decision concerning the best interest of over their child during the relevant time her children, or a parent’s decision regarding who period, then a non-parent cannot as a may associate with her children.” Id. at 209. matter of law acquire standing to file an Further, that the inquiry of the court for a nonoriginal SAPCR with respect to that child. parent claiming standing pursuant to the “actual 7. During the relevant time period, care” requirement of §102.003(a)(9) focuses on a non-parent must exercise exclusive care “whether the parent is adequately caring for her for, control over and supervision over a children.” Id., citing Tex. Fam. Code child (not necessarily continuous for the §102.003(a)(9). The appellate court concluded that entire time period, but during the relevant although Haley lived with the children, Smith also time period) to the exclusion of the child’s lived in the home with the children and had not parent in order to acquire standing to file “abdicated her parental duties and responsibilities” an original SAPCR with respect to that nor did the record show that Smith failed to child.” Id. adequately care for her children. Id. at 209-210. Haley appealed the trial court’s dismissal As such, the court affirmed the trial court’s ruling of her petition for lack of standing. Id. On appeal, that Haley failed to meet her burden and did not the court in considering if she had standing have standing to file suit. Id. focused on the specific statutory words “actual care, control, and possession” in §102.003(a)(9) of the Texas Family Code and stated that they would give each “word effect if it is reasonable and possible to do so.” Id at 208. The appellate court stated that “actual care” must be interpreted in 65 248 S.W.3d 753 (Tex.App.-Fort Worth 2008, no pet.)
2. Same Sex Adoption order shall terminate all rights of the parent The Texas Family Code does not preclude without further termination proceedings.
same sex adoption. Section 162.001 sets forth who may adopt and who may be adopted: Additionally, §102.0035 allows a pregnant woman or any parent of a child to sign a statement 162.001: (a) Subject to the requirements for to confer standing to a prospective adoptive parent standing to sue in Chapter 102, an adult and allow that individual to bring a suit for may petition to adopt a child who may be adoption or for termination and adoption under adopted. §102.003(a)(14). Several cases have considered the issue of standing in same sex adoptions.
(b) A child residing in this state may be In Goodson v. Castellanos, 66 Goodson adopted if: traveled to Kazakstan to adopt a 3-year old child.
After returning, she and her same-sex partner, (1) the parent-child relationship as to each Castellanos, adopted the child. A year later, when living parent of the child has been the parents separated, Castellanos filed a SAPCR terminated or a suit for termination is and after trial, the court appointed Castellanos as joined with the suit for adoption; sole managing conservator. On appeal, Goodson alleged that the Texas adoption was void because (2) the parent whose rights have not been the court lacked subject matter jurisdiction over an terminated is presently the spouse of the adoption of a child by two members of the same petitioner and the proceeding is for a sex. She used various definitions of “parent” in stepparent adoption; Texas Family Code § 101.024 and 101.025 and also cited the Texas Health and Safety Code § (3) the child is at least two years old, the 192.008(a) that says amended birth certificates parent-child relationship has been “must be in the names of the adoptive parents, one terminated with respect to one parent, the of whom must be a female . . . and the other of person seeking the adoption has been a whom must be a male.” The court rejected these managing conservator or has had actual arguments, saying that the court issuing the care, possession, and control of the child adoption order is a court of general jurisdiction for a period of six months preceding the that “may hear and determine any cause that is adoption or is the child's former stepparent, cognizable by courts of law or equity and may and the nonterminated parent consents to grant any relief that could be granted by either the adoption; or courts of law or equity.” Id. at 747. The court also pointed out that the Family Code “specifically (4) the child is at least two years old, the authorizes district courts to issue adoption orders. parent-child relationship has been Id. at 748. The court held that Goodson could not terminated with respect to one parent, and collaterally attack the adoption decree. Id. at 749. the person seeking the adoption is the Goodson also argued that the coparent child's former stepparent and has been a adoption “violates the public interest of the state managing conservator or has had actual of Texas that a child have at most one parent of care, possession, and control of the child each sex.” Id at 750. The court again disagreed. for a period of one year preceding the The Court held that if a parent wishes to maintain adoption. that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede (c) If an affidavit of relinquishment of over to that party parental authority the exercise of parental rights contains a consent for the which may create a profound bond with the child. Department of Protective and Regulatory Id. at 752. Services or a licensed child-placing agency In Hobbs v. Van Stavern, 67 Hobbs was the to place the child for adoption and appoints child’s biological mother who conceived the child the department or agency managing conservator of the child, further consent by 66 214 S.W.3d 741 (Tex.App.—Austin 2007).
the parent is not required and the adoption 67 249 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2006).
through donor insemination and Van Stavern children. 71 If a parent has engaged in estate adopted the child when the child was 3 years old. planning, and has designated a guardian for a A year and a half later, the parents separated and child, then that person, upon being appointed Van Stavern moved out of the home and filed a guardian, would have standing to file suit. SAPCR. When Hobbs attacked the validity of the J. Standing to Adjudicate Parentage adoption, the court responded that the attack was Unless a voluntary acknowledgment of untimely, and held that the validity of an adoption paternity has been executed by another man, a order is not subject to attack after six months after prospective father has standing to seek the date the order was signed. Id. Hobbs also adjudication of paternity. claimed that appointing Van Stavern as a joint 102.003(a)(8): a man alleging himself to be managing conservator of the child violated public the father of a child filing in accordance policy because it was “tantamount to a with Chapter 160, subject to the limitations proclamation validating same-sex relationships.” of that chapter, but not otherwise. Id. Noting that Van Stavern had “little substantive 160.602(a): Subject to Subchapter D argument and no citation to authority,” the court [voluntary acknowledgment of paternity] found that, because the Code permitted Van and [the time limits in] Sections 160.607 Stavern to seek custody, it was “constrained to and 160.609 and except as provided by follow the provisions of the Family Code as Subsection (b), a proceeding to adjudicate enacted” and overruled the public policy parentage may be maintained by: argument. Id. at 4-5. (1) the child; I. Designated Guardian: Connecting the (2) the mother of the child;
Probate Code to the Family Code (3) a man whose paternity of the child is to An attorney practicing primarily family law be adjudicated;
may not have a working familiarity with the (4) the support enforcement agency or Probate Code, nonetheless, it can provide standing another government agency authorized in certain instances. Under Tex. Fam. Code by other law; 102.003(a)(4), a guardian of the person or of the (5) an authorized adoption agency or estate of the child has standing to file an original licensed child-placing agency; suit. Such a person also has standing to file a (6) a representative authorized by law to modification suit, pursuant to Tex. Fam. Code § act for an individual who would 156.002(b). otherwise be entitled to maintain a In the Probate Code, the term “guardian” is proceeding but who is deceased, is defined to mean a person who is appointed incapacitated, or is a minor; guardian under Section 693 of the Probate Code, (7) a person related within the second or a temporary or successor guardian. 68 The term degree by consanguinity to the mother “guardian” in Section 102.003(a)(4) of the Family of the child, if the mother is deceased; Code must be construed in accordance with the or Probate Code’s definition of “guardian.” 69 (8) a person who is an intended parent.
Section 676 of the Probate Code allows the (b) After the date a child having no presumed, surviving parent of a minor, by will or written acknowledged, or adjudicated father declaration, to appoint any eligible person to be becomes an adult, a proceeding to guardian of the person of the parent's minor adjudicate the parentage of the adult child children after the death or incapacity of the may only be maintained by the adult child. parent. 70 After the parent’s death or a finding of Prior to 2007, there was debate over whether a incapacity, the court shall appoint the person sperm donor had standing to adjudicate parentage. designated in the will or declaration to serve as In re Sullivan 72 held that where a mother and a guardian of the person of the parent's minor donor had executed a co-parenting agreement, he
68 Tex. Prob. Code § 601(11). 69 71 In re A.D.P., 281 S.W.3d 541, 549 (Tex.App.—El Paso Tex. Prob. Code § 676(e).
72
2008, no pet.). In re Sullivan, 157 S.W.3d 911 (Tex.App.--Houston [14th 70 Tex. Prob. Code § 676(d). Dist.] 2005, orig. proceeding [mand. denied]).
had standing to bring a suit; while In re H.C.S.73 allegations were made fraudulently to confer held that a donor did not have standing. In 2007, jurisdiction. 81 When reviewing a trial court's order Tex. Fam. Code § 160.7031 was revised to clarify on a plea to the jurisdiction, an appellate court the issue. may look to evidence outside of the pleadings:
Another interesting case held that, where a “[T]he issues raised by a dilatory plea are often man seeking to be adjudicated the father has such that they cannot be resolved without hearing standing as of the filing of the case, the court does evidence. And because a court must not act not lose subject matter jurisdiction over the without determining that it has subject-matter parentage action when the DNA test results jurisdiction to do so, it should hear evidence as determine that he is not the father. 74 necessary to determine the issue before proceeding with the case. But the proper function of a dilatory IV. Challenging Standing plea does not authorize an inquiry so far into the The Sullivan 75 case contains a discussion on substance of the claims presented that plaintiffs the proper procedure for challenging standing: are required to put on their case simply to Standing is a prerequisite to subject-matter establish jurisdiction….The court should, of jurisdiction, which is essential to a court's power course, confine itself to the evidence relevant to to decide a case. 76 A party may challenge the the jurisdictional issue.” 82 absence of subject-matter jurisdiction by a plea to the jurisdiction and by other procedural vehicles.77 A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat the alleged claims, without regard to whether they have merit. 78 The purpose of a dilatory plea is not to force a plaintiff to preview its case on the merits, but to establish a reason why the merits of its case should never be reached. 79 Meeting the burden for standing is different than meeting the burden to prevail on the case. The Texas Supreme Court has emphasized that a court should not decide standing issues based on its views of the merits: “In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent.” 80 A trial court accepts the factual allegations in the petition as true, unless the defendant pleads and proves the
73 In re H.C.S., 219 S.W.3d 33 (Tex.App.-San Antonio 2006, no pet.). 74 In re K.I.A., 205 S.W.3d 14 (Tex.App.—Eastland 2006, no pet.). 75 In re Sullivan, 157 S.W.3d 911, 914-15 (Tex.App.-- Houston [14th Dist.] 2005, orig. proceeding, [mand. denied]). 76 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). 77 Id. at 554. 78 81 Id. Id. at 554; TAC Realty, Inc. v. City of Bryan, 126 S.W.3d 79 Id. 558, 561 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). 80 82 Id. at 554-55. Id. at 554-55.
V. Appendix A, Texas Family Code Standing Government Code, if the child's parents are Provisions deceased at the time of the filing of the petition; or
(14) a person who has been named as a A. Chapter 102 prospective adoptive parent of a child by a pregnant woman or the parent of the child, Tex. Fam. Code § 102.003.
in a verified written statement to confer GENERAL STANDING TO FILE SUIT.
standing executed under Section 102.0035, (a) An original suit may be filed at any time by:
regardless of whether the child has been (1) a parent of the child;
born.
(2) the child through a representative (b) In computing the time necessary for standing authorized by the court;
under Subsections (a)(9), (11), and (12), the (3) a custodian or person having the right of court may not require that the time be visitation with or access to the child continuous and uninterrupted but shall appointed by an order of a court of another consider the child's principal residence during state or country;
the relevant time preceding the date of (4) a guardian of the person or of the estate of commencement of the suit.
the child;
(c) Notwithstanding the time requirements of (5) a governmental entity;
Subsection (a)(12), a person who is the foster (6) an authorized agency;
parent of a child may file a suit to adopt a (7) a licensed child placing agency;
child for whom the person is providing foster (8) a man alleging himself to be the father of a care at any time after the person has been child filing in accordance with Chapter approved to adopt the child. The standing to 160, subject to the limitations of that file suit under this subsection applies only to chapter, but not otherwise;
the adoption of a child who is eligible to be (9) a person, other than a foster parent, who adopted.
has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date Tex. Fam. Code § 102.0035. of the filing of the petition; STATEMENT TO CONFER STANDING.
(a) A pregnant woman or a parent of a child may (10) a person designated as the managing execute a statement to confer standing to a conservator in a revoked or unrevoked prospective adoptive parent as provided by this affidavit of relinquishment under Chapter section to assert standing under Section 161 or to whom consent to adoption has 102.003(a)(14). A statement to confer standing been given in writing under Chapter 162;
under this section may not be executed in a (11) a person with whom the child and the suit brought by a governmental entity under child's guardian, managing conservator, or Chapter 262 or 263.
parent have resided for at least six months (b) A statement to confer standing must contain:
ending not more than 90 days preceding (1) the signature, name, age, and address of the the date of the filing of the petition if the person named as a prospective adoptive child's guardian, managing conservator, or parent;
parent is deceased at the time of the filing (2) the signature, name, age, and address of the of the petition;
pregnant woman or of the parent of the (12) a person who is the foster parent of a child who is consenting to the filing of a child placed by the Department of Family petition for adoption or to terminate the and Protective Services in the person's parent-child relationship as described by home for at least 12 months ending not Subsection (a);
more than 90 days preceding the date of (3) the birth date of the child or the anticipated the filing of the petition;
birth date if the child has not been born;
(13) a person who is a relative of the child and
within the third degree by consanguinity, (4) the name of the county in which the suit as determined by Chapter 573, will be filed.
(c) The statement to confer standing must be deemed by the court to have had substantial attached to the petition in a suit affecting the past contact with the child leave to intervene in parent-child relationship. The statement may a pending suit filed by a person authorized to not be used for any purpose other than to do so under this subchapter if there is confer standing in a proceeding for adoption or satisfactory proof to the court that appointment to terminate the parent-child relationship. of a parent as a sole managing conservator or (d) A statement to confer standing may be signed both parents as joint managing conservators at any time during the pregnancy of the mother would significantly impair the child's physical of the unborn child whose parental rights are health or emotional development. to be terminated. (c) Possession of or access to a child by a (e) A statement to confer standing is not required grandparent is governed by the standards in a suit brought by a person who has standing established by Chapter 153. to file a suit affecting the parent-child relationship under Sections 102.003(a)(1)-(13) Tex. Fam. Code § 102.0045. or any other law under which the person has STANDING FOR SIBLING. standing to file a suit. (a) The sibling of a child may file an original suit (f) A person who executes a statement to confer requesting access to the child as provided by standing may revoke the statement at any time Section 153.551 if the sibling is at least 18 before the person executes an affidavit for years of age. voluntary relinquishment of parental rights. (b) Access to a child by a sibling of the child is The revocation of the statement must be in governed by the standards established by writing and must be sent by certified mail, Section 153.551. return receipt requested, to the prospective adoptive parent. Tex. Fam. Code § 102.005.
(g) On filing with the court proof of the delivery STANDING TO REQUEST TERMINATION of the revocation of a statement to confer AND ADOPTION. standing under Subsection (f), the court shall An original suit requesting only an adoption or for dismiss any suit affecting the parent-child termination of the parent-child relationship joined relationship filed by the prospective adoptive with a petition for adoption may be filed by: parent named in the statement. (1) a stepparent of the child;
(2) an adult who, as the result of a placement Tex. Fam. Code § 102.004. for adoption, has had actual possession and STANDING FOR GRANDPARENT OR control of the child at any time during the OTHER PERSON. 30-day period preceding the filing of the (a) In addition to the general standing to file suit petition;
provided by Section 102.003, a grandparent, or (3) an adult who has had actual possession and another relative of the child related within the control of the child for not less than two third degree by consanguinity, may file an months during the three-month period original suit requesting managing preceding the filing of the petition; conservatorship if there is satisfactory proof to (4) an adult who has adopted, or is the foster the court that: parent of and has petitioned to adopt, a (1) the order requested is necessary because sibling of the child; or the child's present circumstances would (5) another adult whom the court determines to significantly impair the child's physical have had substantial past contact with the health or emotional development; or child sufficient to warrant standing to do (2) both parents, the surviving parent, or the so.
managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.006.
(b) An original suit requesting possessory LIMITATIONS ON STANDING.
conservatorship may not be filed by a (a) Except as provided by Subsections (b) and (c), grandparent or other person. However, the if the parent-child relationship between the court may grant a grandparent or other person child and every living parent of the child has
been terminated, an original suit may not be If both of the parents of a child are deceased, the filed by: court may consider appointment of a parent, sister, (1) a former parent whose parent-child or brother of a deceased parent as a managing relationship with the child has been conservator of the child, but that consideration terminated by court order; does not alter or diminish the discretionary power (2) the father of the child; or of the court. (3) a family member or relative by blood, adoption, or marriage of either a former Tex. Fam. Code § 153.432. parent whose parent-child relationship has SUIT FOR POSSESSION OR ACCESS BY been terminated or of the father of the GRANDPARENT. child. (a) A biological or adoptive grandparent may (b) The limitations on filing suit imposed by this request possession of or access to a grandchild section do not apply to a person who: by filing: (1) has a continuing right to possession of or (1) an original suit; or access to the child under an existing court (2) a suit for modification as provided by order; or Chapter 156.
(2) has the consent of the child's managing (b) A grandparent may request possession of or conservator, guardian, or legal custodian to access to a grandchild in a suit filed for the bring the suit. sole purpose of requesting the relief, without (c) The limitations on filing suit imposed by this regard to whether the appointment of a section do not apply to an adult sibling of the managing conservator is an issue in the suit. child, a grandparent of the child, an aunt who (c) In a suit described by Subsection (a), the is a sister of a parent of the child, or an uncle person filing the suit must execute and attach who is a brother of a parent of the child if the an affidavit on knowledge or belief that adult sibling, grandparent, aunt, or uncle files contains, along with supporting facts, the an original suit or a suit for modification allegation that denial of possession of or requesting managing conservatorship of the access to the child by the petitioner would child not later than the 90th day after the date significantly impair the child's physical health the parent-child relationship between the child or emotional well-being. The court shall deny and the parent is terminated in a suit filed by the relief sought and dismiss the suit unless the the Department of Family and Protective court determines that the facts stated in the Services requesting the termination of the affidavit, if true, would be sufficient to support parent-child relationship. the relief authorized under Section 153.433.
Tex. Fam. Code § 102.007. Tex. Fam. Code § 153.433. STANDING OF TITLE IV-D AGENCY. POSSESSION OF OR ACCESS TO In providing services authorized by Chapter 231, GRANDCHILD. the Title IV-D agency or a political subdivision (a) The court may order reasonable possession of contracting with the attorney general to provide or access to a grandchild by a grandparent if: Title IV-D services under this title may file a child (1) at the time the relief is requested, at least support action authorized under this title, one biological or adoptive parent of the including a suit for modification or a motion for child has not had that parent's parental enforcement. rights terminated;
(2) the grandparent requesting possession of or access to the child overcomes the B. Chapter 153 presumption that a parent acts in the best interest of the parent's child by proving by Tex. Fam. Code § 153.431.
a preponderance of the evidence that denial APPOINTMENT OF GRANDPARENT, of possession of or access to the child AUNT, OR UNCLE AS MANAGING would significantly impair the child's CONSERVATOR.
physical health or emotional well-being; and
(3) the grandparent requesting possession of or (C) executed an affidavit of waiver of interest access to the child is a parent of a parent of in child or an affidavit of relinquishment of the child and that parent of the child: parental rights under Chapter 161 and the (A) has been incarcerated in jail or prison affidavit designates an authorized agency, during the three-month period licensed child-placing agency, or person preceding the filing of the petition; other than the child's stepparent as the (B) has been found by a court to be managing conservator of the child; and incompetent; (2) the grandchild has been adopted, or is the (C) is dead; or subject of a pending suit for adoption, by a (D) does not have actual or court-ordered person other than the child's stepparent.
possession of or access to the child.
(b) An order granting possession of or access to a Tex. Fam. Code § 153.551.
child by a grandparent that is rendered over a SUIT FOR ACCESS. parent's objections must state, with specificity (a) The sibling of a child who is separated from that: the child because of an action taken by the (1) at the time the relief was requested, at least Department of Family and Protective Services one biological or adoptive parent of the may request access to the child by filing: child had not had that parent's parental (1) an original suit; or rights terminated; (2) a suit for modification as provided by Chapter (2) the grandparent requesting possession of or 156.
access to the child has overcome the (b) A sibling described by Subsection (a) may presumption that a parent acts in the best request access to the child in a suit filed for the interest of the parent's child by proving by sole purpose of requesting the relief, without a preponderance of the evidence that the regard to whether the appointment of a denial of possession of or access to the managing conservator is an issue in the suit. child would significantly impair the child's (c) The court shall order reasonable access to the physical health or emotional well-being; child by the child's sibling described by and Subsection (a) if the court finds that access is (3) the grandparent requesting possession of or in the best interest of the child.
access to the child is a parent of a parent of the child and that parent of the child:
C. Chapter 156
(A) has been incarcerated in jail or prison during the three-month period Tex. Fam. Code § 156.002.
preceding the filing of the petition;
WHO CAN FILE.
(B) has been found by a court to be (a) A party affected by an order may file a suit for incompetent; modification in the court with continuing, (C) is dead; or exclusive jurisdiction. (D) does not have actual or court-ordered (b) A person or entity who, at the time of filing, possession of or access to the child. has standing to sue under Chapter 102 may file a suit for modification in the court with Tex. Fam. Code § 153.434. continuing, exclusive jurisdiction. LIMITATION ON RIGHT TO REQUEST (c) The sibling of a child who is separated from POSSESSION OR ACCESS. the child because of the actions of the A biological or adoptive grandparent may not Department of Family and Protective Services request possession of or access to a grandchild may file a suit for modification requesting if: access to the child in the court with (1) each of the biological parents of the grandchild continuing, exclusive jurisdiction.
has: (A) died; (B) had the person's parental rights terminated;
or
D. Chapter 160
Tex. Fam. Code § 160.602. STANDING TO MAINTAIN PROCEEDING. (a) Subject to Subchapter D and Sections 160.607 and 160.609 and except as provided by Subsection (b), a proceeding to adjudicate parentage may be maintained by: (1) the child; (2) the mother of the child; (3) a man whose paternity of the child is to be adjudicated;
(4) the support enforcement agency or another government agency authorized by other law;
(5) an authorized adoption agency or licensed child-placing agency;
(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor;
(7) a person related within the second degree by consanguinity to the mother of the child, if the mother is deceased; or (8) a person who is an intended parent.
(b) After the date a child having no presumed, acknowledged, or adjudicated father becomes an adult, a proceeding to adjudicate the parentage of the adult child may only be maintained by the adult child.
APPENDIX B
APPENDIX C
C.
Standing Denied – No Actual Care
C. Standing Denied - No Actual Care
In the Interest of C.T.H.S. and C.R.H.S.
311 S.W.3d 204
(Tex. App.—Beaumont 2010, pet. denied)
KREGER, JUSTICE. Sheila R. Haley appeals the dismissal of her petition to be appointed sole managing conservator with the right to designate the primary residence of the twin children of Charlena Renee Smith. In two issues, Haley contends the trial court erred in determining that Haley lacked standing to pursue an original suit affecting the parent-child relationship (“SAPCR”) and in considering affidavits offered by Smith. Because Haley did not establish she has standing, and because we presume the trial court ignored all incompetent evidence in reaching its conclusion, the order of the trial court is affirmed.
Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-44 (Tex. 1993). A person who seeks conservatorship of a child must have standing to file suit. In re K.K.C., 292 S.W.3d 788, 790 (Tex. App.—Beaumont 2009, orig. proceeding). “Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review.” Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In an original suit affecting the parent-child relationship in which the petitioner seeks managing conservatorship, the question of standing is a threshold issue. In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). The Texas Legislature has provided a comprehensive statutory framework for conferring standing in the context of suits involving the parent-child relationship. See TEX. FAM.CODE ANN. §§ 102.003, .0035, .004, .0045 (Vernon Supp. 2009), § 102.006 (Vernon 2008). A petitioner seeking managing conservatorship has the burden to prove standing. In re Smith, 262 S.W.3d 463, 465 (Tex. App.—Beaumont 2008, orig. proceeding [mand. denied]).
In an earlier mandamus proceeding, this Court held that a 2002 agreed order naming Haley as joint managing conservator of C.T.H.S. and C.R.H.S. was void. Id. at 466-67. We identified two reasons why the trial court lacked jurisdiction in 2002. First, the twins were only four months old at the time the suit was commenced, and, therefore, Haley lacked standing. Id. at 465; see TEX. FAM.CODE ANN. § 102.003(a)(9) (conferring standing on “a person, other than a foster parent, who has had actual care, control, and possession of the child[ren] for at least six months ending not more than 90 days preceding the date of the filing of the petition”). Second, in 2002 there was no real controversy between Haley and Smith to be resolved by the court. Smith, 262 S.W.3d at 466. We held that the temporary orders arising out of the motion to modify the void order must be vacated. Id. at 467. The trial court vacated its prior orders on August 19, 2008.
Haley’s 2008 petition seeking to be named sole managing conservator is an original petition under Chapter 153 of the Texas Family Code. Haley argues she has standing to file suit under section 102.003(a)(9). See TEX. FAM.CODE ANN. § 102.003(a)(9). At the request of the trial court, the parties briefed the issue of whether Haley had standing to maintain an original SAPCR action and presented supporting affidavits to the trial court. The trial court conducted a hearing at which it initially stated
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Chapter 4 Suits Affecting the Parent-Child Relationship
that there were outstanding fact issues with regard to the allegations of whether the parent was unfit.1 However, after consideration of trial counsel’s arguments and the parties’ affidavits, the trial court dismissed Haley’s SAPCR petition for lack of standing. The trial court made written findings of fact and conclusions of law, as follows:
1. There is no evidence that, during the relevant time period, the parent Ms. Smith totally abdicated her parental responsibilities over the children to the non parent Ms. Haley.
2. There is no evidence that, during the relevant time period, the parent Ms. Smith did not exercise some care for, some control over or some supervision over the children at the same time that the non parent Ms. Haley exercised some care for, some control over and some supervision over the children.
3. There is no evidence that, during the relevant time period, the non parent Ms. Haley exercised exclusive care for, control over and supervision over the children to the exclusion of the parent Ms. Smith.
4. A parent must totally abdicate their parental responsibilities to another person during the relevant time period before that other person can acquire standing to file an original SAPCR with respect to that parent’s child.
5. A parent’s allowing of a non parent to have some care for, some control over and some supervision over the parent’s child during the relevant time period is insufficient for the non parent to acquire standing to file an original SAPCR with respect to that child.
6. If a parent, to any extent whatsoever, retains or exercises any care for, any control over or any supervision over their child during the relevant time period, then a non-parent cannot as a matter of law acquire standing to file an original SAPCR with respect to that child.
7. During the relevant time period, a non-parent must exercise exclusive care for, control over and supervision over a child (not necessarily continuous for the entire time period, but during the relevant time period) to the exclusion of the child’s parent in order to acquire standing to file an original SAPCR with respect to that child.
On appeal, Haley argues that the trial court’s conclusions of law are erroneous. She states she “does not necessarily disagree with the factual findings,” but “the factual findings have no effect as applied, because they are based on the erroneous conclusions of law.”
We are to consider the findings as a whole and adopt the construction that gives effect to all material findings. See generally De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 360 (1960). When the findings are “subject to more than one reasonable construction, they should be given that meaning which will support the action of the court” as expressed in the order. Id. We conclude the trial court determined Smith was a fit parent adequately caring for her children. See TEX.R. CIV. P. 299.2 Although Haley challenges the court’s conclusions of law, she does not argue on appeal that Smith does not adequately care for her children.
1 Oral statements by the trial judge may not be considered as a substitute for findings of fact or conclusions of law. See In the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); Tate v. Tate, 55 S.W.3d 1, 7 n. 4 (Tex. App.—El Paso 2000, no pet.). Furthermore, when a trial court issues findings that conflict with an initial finding, the later findings control over the earlier findings. Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 960 (Tex. App.—Beaumont 1994, writ denied). 2 Rule 299. Omitted Findings When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a
146 TEXAS FAMILY LAW
C.
Standing Denied – No Actual Care
This Court stated as follows in K.K.C.:
The interest of parents in the “care, custody, and control” of their children “is perhaps the oldest of the fundamental liberty interests” recognized by the United States Supreme Court. (Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). Furthermore, this State has long recognized that the “natural right which exists between parents and their children is one of constitutional dimensions.” See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, orig. proceeding). In re K.K.C., 292 S.W.3d at 792 (footnote omitted). “These parental interests are a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” In re Pensom, 126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, orig. proceeding) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “Texas statutes are intended by the Legislature to be in compliance with the Constitutions of this State and the United States.” In re K.K.C., 292 S.W.3d at 792 (citing TEX. GOV’T CODE ANN. § 311.021(1)(Vernon 2005)) (footnote omitted). “A court construes a statute to give effect to the Legislature’s intent as expressed in the actual language used in the statute.” Id. (citing Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000) and In re Pensom, 126 S.W.3d at 255-56).
The power of a trial court to adjudicate disputes between a parent and a non-parent, and to enforce its own orders contrary to a parent’s decisions concerning her children, constitutes state involvement that implicates the parent’s fundamental liberty interests in the care, custody, and control of her children. See Troxel, 530 U.S. at 65-76, 120 S.Ct. 2054. The jurisdictional requirement of standing helps ensure that a parent's constitutional rights are not needlessly interfered with through litigation. See generally In re Pensom, 126 S.W.3d at 255 (“[J]urisdictional prerequisite of standing [in grandparent access context] serves to ensure that the statutory scheme is narrowly tailored so that a parent’s personal affairs are not needlessly intruded upon or interrupted by the trauma of litigation by any third party seeking access.”). As the United States Supreme Court explained in Troxel, “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).
The standing statutes should be construed in a manner consistent with the constitutional principles stated in Troxel. See In re Pensom, 126 S.W.3d at 255-56. In the provision at issue here, the Legislature chose the words “actual care, control and possession.” TEX. FAM.CODE ANN. § 102.003(a)(9). We presume each word was used for a purpose, and give each word effect if it is reasonable and possible to do so. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000). The law recognizes that a parent has the responsibility to care for her children. See TEX. FAM.CODE ANN. § 151.001(a)(2) (Vernon 2008). The words “actual care” must be given effect in the context of the responsibilities of the parent and the parent's liberty interests. See generally In re K.K.C., 292 S.W.3d at 792-93 (meaning of “control” in section 102.003(a)(9)).
We note that section 102.003(a)(11) separately provides standing to a person with whom the child and a parent have resided for at least six months if the “parent is deceased at the time of the filing of
presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment....
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Chapter 4 Suits Affecting the Parent-Child Relationship
the petition[.]” TEX. FAM.CODE ANN. § 102.003(a)(11). Presumably, a person residing with a parent and child may care for the child over the course of time, yet that person would not have standing simply by the care that would normally be exercised when residing in the same household with the parent and the child. If the same degree of care, control, and possession that would accompany living with the parent and child were sufficient to establish standing under section 102.003(a)(9), the requirement that the parent be deceased in section 102.003(a)(11) would be without effect, because standing would separately exist under section 102.003(a)(9). We should not construe section 102.003(a)(9) so broadly that section 102.003(a)(11) is rendered meaningless. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 441-42 (Tex. 2009) (noting that a statute should not be interpreted in a manner that renders parts of it meaningless).
The Fort Worth Court of Appeals in the case of In re M.J.G., 248 S.W.3d 753, 757-59 (Tex.
App.—Fort Worth 2008, no pet.), considered the “actual care” requirement in section 102.003(a)(9). In M.J.G., the court held that grandparents who alleged “M.J.G. had lived with them since she was born[,] with the exception of one two-week period when she stayed with her parents in another town[,]” nevertheless lacked standing under section 102.003(a)(9). Id. at 757, 759. Even though M.J.G. and her brother lived with the grandparents, and the grandparents performed day-to-day caretaking duties for the children, the children’s parents were also living with the children in the home, and there was no evidence that the parents did not care for the children or that the parents had abdicated their parental duties and responsibilities to the grandparents. See id. at 758-59. Haley argues that “the decision reached in [M.J.G.] incorrectly construes TEX. FAM.CODE § 102.003(a)(9).” She argues that a parent often lives with others, and that the best interest of the children should be considered.
The holding in M.J.G. appears to be consistent with the meaning of the language used by the Legislature, the constitutional liberty interests retained by a fit parent adequately caring for her children, and the statutory scheme for standing set forth in the Family Code. See In re K.K.C., 292 S.W.3d at 793. Standing does not turn on whether a trial court agrees or disagrees with a parent’s decision concerning the best interest of her children, or a parent’s decision regarding who may associate with her children. Specifically, when someone other than a parent claims standing under the “actual care” requirement of section 102.003(a)(9), the court considers whether the parent is adequately caring for her children. See TEX. FAM.CODE. ANN. § 102.003(a)(9); In re M.J.G., 248 S.W.3d at 757-59; see also Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 (presumption that fit parents act in the best interest of their children); see generally In re Pensom, 126 S.W.3d at 255 (considering limitations of intrusion into the parent-child relationship in the grandparent access context). Although Haley lived with the children, Smith also lived with her children in the home, and the record does not establish that Smith failed to adequately care for her children or that she abdicated her parental duties and responsibilities. See In re M.J.G., 248 S.W.3d at 757-59; see also In re K.K.C., 292 S.W.3d at 792-94.
In issue two, Haley complains about the affidavits Smith submitted to the trial court. Haley filed a motion to strike Smith’s affidavits. The trial court stated generally that the court was granting proper objections and overruling improper ones. Haley did not request clarification. We presume the trial court disregarded incompetent evidence. See Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982).
Haley had the burden to establish standing. See In re Smith, 262 S.W.3d at 465. The trial court could reasonably conclude she failed to meet her burden. We overrule issues one and two. The trial court’s order is affirmed.
AFFIRMED.
148 TEXAS FAMILY LAW
APPENDIX D
Chris Daniel
HARRIS COUNTY DISTRICT CLERK P.O. BOX 4651
HOUSTON, TEXAS 77210-4651
Certificate Of Disposition DATE: 9/8/2014 NAME: DAVIS, JOSEPH ANDRE DATE OF BIRTH: 3/19/1973
This certificate is issued under seal, certifying that the information contained herein is a true and correct restatement of the summary electronic data of the records filed and/or recorded in the District Clerk's Office, as it appears on this date. A criminal search was conducted from 1976 to present. Records pertaining to federal entities, other Counties', Justices of the Peace or other Municipalities' Class C misdemeanor will NOT be displayed. The search results are dependent on identifiers entered by the user. The following 1 charges were found: FILING DATE: 1/24/1991 DEFENDANT NAME: DAVIS, JOSEPH ANDRE CASE: 910312101010 COURT: 005 OFFENSE REPORT NO.: NOT AVAILABLE OFFENSE: THEFT $20-$200 LEVEL/DEGREE: Misdemeanor B DISPOSITION: DEFERRED ADJUDICATION OF GUILT 4/2/1991 : PROBATION 180 DAYS 4/2/1991 : FINE $50 10/4/1991 : DEFERRED ADJUDICATION TERMINATED
(DAVIS, JOSEPH ANDRE - PAGE: 2)
The following definitions apply only if cited as a part of the disposition above.
12.44 (b) The court authorized the state to prosecute the case as a misdemeanor under Texas Penal Code section 12.44 (b)
Deferred Adjudication of guilt-the court deferred further proceedings without entering a finding of guilt and placed the defendant on community supervision.
Deferred Adjudication of guilt terminated, defendant charged, case dismissed defendant completed community supervision and a dismissal and discharge may not be deemed a conviction (felony or misdemeanor) for the purposes of disqualification disabilities imposed by law for conviction of an offense.
Witness my official hand and seal of office on 9/8/2014
201 CAROLINE - PO BOX 4651 - HOUSTON, TEXAS 77210-4651 - (713) 755-7300
APPENDIX E 9/5/2014 Messages Print.txt Sandra Lopez Mother 1. Print All 2. 3. Select a discussion: Me - Sandra ( 8323263522 )
Jenn Davis is Me
4. 5. 6. - Me, 17/06/2013 15:33 Step Mother
7. Hey sandra we r takn the little kids to six flags this weekend we r leavn thurs ane coming back saturday and I wanted to c if jordan will 8. 9. - Sandra, 17/06/2013 15:36 10. She has tournaments this weekend and every weekend until the end of July 11. 12. - Me, 06/07/2013 11:05 13. Hey sandra I requested a providers list for dentist I'm just waiting on it 14. 15. - Sandra, 06/07/2013 14:52 16. Thanks Jennifer 17. 18. - Me, 10/07/2013 15:08 19. Hey sandra joe said u were suppose to b going out of town in july what weekend are u going cause we r going out of town 4 my bday but tryn 20. 21. - Sandra, 10/07/2013 15:11 22. The 14th to the 21st vacation. With everyone. Then with Jay the 28th through 31st in Denton. Hope that helps. 23. 24. - Sandra, 10/07/2013 15:16 25. I hate to ask again. But, have they sent you a list of dentist the kids could go to yet? Jordan's tooth is really bothering here. Locatio 26. 27. - Sandra, 10/07/2013 15:17 28. r just need to get her seen. 29. 30. - Me, 10/07/2013 15:41 31. Ok so they can go back to champions dental now they sent something over there verifying all 3 kids and they can go as soon as tommorrow... 32. 33. - Sandra, 10/07/2013 15:41 34. Thanks 35. 36. - Sandra, 10/07/2013 15:43 37. Thanks, I appreciate your help. 38. 39. - Me, 03/08/2013 12:58 40. Sandra when does jay need this stuff by 41. 42. - Sandra, 03/08/2013 13:02 43. He leaves the 22nd. Just whatever y'all can help with. Thanks 44. 45. - Me, 03/08/2013 13:04 46. Ok ill get on it 47. 48. - Sandra, 03/08/2013 13:05 49. I told Joe I will let you know when I buy stuff so we can scratch it off the list. Thanks again 50. 51. - Me, 03/08/2013 13:05 52. Ok just let me no cause joe will forget 53. 54. - Sandra, 03/08/2013 13:06 55. Ok I will text you and not him. Lol 56. 57. - Me, 03/08/2013 13:09 58. Ok 59. 60. - Me, 03/08/2013 13:52 61. I just bought the mirror blanket some tide detergent and bounce dryer sheets 62. 63. - Sandra, 03/08/2013 13:53 64. Damn your fast and good. Thanks 65. 66. - Sandra, 03/08/2013 20:18 67. Scratch off the list. Towels, bath rugs, shower caddy, laundry basket, lamps, one storage container and dry erase board. 68. 69. - Me, 03/08/2013 20:22 70. Ok done. 71. 72. - Me, 03/08/2013 20:23 73. Did u get both lamps and did u get a throw rug also or just bath rug 74. 75. - Sandra, 03/08/2013 20:27 76. For both lamps. And bath rugs. Black rugs 77. 78. - Me, 03/08/2013 20:30 79. Ok 80. 81. - Me, 03/08/2013 20:30 82. The blanket we got is black also its a plush one... 83. 84. - Me, 03/08/2013 20:31 85. What color bed sheets does he need to match his comforter
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9/5/2014 Messages Print.txt 86. 87. - Sandra, 03/08/2013 20:31 88. Great minds think a like. Lol 89. 90. - Me, 03/08/2013 20:32 91. Rt.lol 92. 93. - Sandra, 03/08/2013 20:33 94. Grey or off white. Either would match. 95. 96. - Me, 03/08/2013 20:33 97. Ok 98. 99. - Me, 05/08/2013 20:24 100. Hey sandra u can pick her up the 16th and drop her back off the 21st and pick her back up the 24th....will that work 4 u? 101. 102. - Sandra, 05/08/2013 20:33 103. We leave for Denton on the 22nd. But the rest is fine. 104. 105. - Me, 05/08/2013 20:58 106. Ok we gotta wk that weekend so she will have to stay with granny so if u wanna take her to denton u can or she can stay either way is fine 107. 108. - Sandra, 05/08/2013 21:26 109. I will probably just take her so she can say bye to jay and see the campus. 110. 111. - Me, 05/08/2013 21:48 112. Ok 113. 114. - Me, 07/08/2013 14:32 115. Hey sandra what time u coming to get jordan 116. 117. - Sandra, 07/08/2013 14:33 118. At 4 119. 120. - Me, 07/08/2013 14:33 121. Ok 122. 123. - Sandra, 10/08/2013 20:43 124. Hey Jenn, I got Jay a few more things. Back rest pillow, an area rug, and a can opener. 125. 126. - Me, 10/08/2013 20:46 127. Ok I scratched it off...I haven't had time to go again yet I will go do some more when we get back from six flags 128. 129. - Sandra, 10/08/2013 20:47 130. Your fine, I haven't had much time either. 131. 132. - Sandra, 17/08/2013 20:33 133. Hey Jenn... Went shopping for Jay again. All bed items are bought and all towels are bought. 134. 135. - Me, 17/08/2013 20:34 136. Ok ill mark it off 137. 138. - Sandra, 17/08/2013 20:35 139. Thanks 140. 141. - Me, 22/09/2013 13:45 142. Be there in 5 minutes 143. 144. - Me, 04/10/2013 17:02 145. Hey sandra can u bring jordan over when she gets done with practice 146. 147. - Sandra, 04/10/2013 17:07 148. I won't be able to because I'm not the one taking her to practice. I will be at Joeys game in Humble. 149. 150. - Sandra, 01/11/2013 21:03 151. Thanks Jenn. She said she had fun. 152. 153. - Me, 01/11/2013 21:04 154. No prob....I wanted to take more but I couldn't get her to smile...glad she had fun... 155. 156. - Me, 01/11/2013 21:05 157. Oh and btw I'm sending all that candy hm... 158. 159. - Sandra, 01/11/2013 21:06 160. Okay... Don't y'all wanna keep it. Lol... Imagine the kids and all that sugar. The boys use to bounce off the walls. 161. 162. - Me, 01/11/2013 21:08 163. We got plenty they got 2 bags full...they will b doin plenty of bouncing...lol...poor jake got tired so jordan and josh continued on with 164. 165. - Me, 01/11/2013 21:08 166. Got 1 more pic for u 167. 168. - Sandra, 01/11/2013 21:09 169. Poor thing. 170. 171. - Me, 01/11/2013 21:11
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9/5/2014 Messages Print.txt 172. Yep...I sent it to jay and joey also 173. 174. - Sandra, 01/11/2013 21:12 175. I'm sure they will like it. 176. 177. - Me, 15/11/2013 18:59 178. I'm here 179. 180. - Me, 17/11/2013 15:34 181. Hey sandra I'm gettn off wrk now and I can have jordan hm around 430 is that ok 182. 183. - Sandra, 17/11/2013 15:36 184. That's fine, I'm home already. Thanks 185. 186. - Me, 27/11/2013 21:10 187. Jay told me he wanted a 3ds so I just bought him one for xmas.... 188. 189. - Me, 27/11/2013 21:10 190. Him and josh want same thing so I just got 2 191. 192. - Sandra, 27/11/2013 21:15 193. Okay. He told me the same thing. How ironic him Josh wanted the same thing. lol 194. 195. - Me, 27/11/2013 21:17 196. And the same damn game....I'm havn a hard time finding it tho....josh couldn't wait for jay to get here so they could talk pokemon...lol.. 197. 198. - Sandra, 27/11/2013 21:21 199. How stinking funny. Two peas in a pod. 200. 201. - Me, 27/11/2013 21:22 202. And jake and Joey r the same way 203. 204. - Sandra, 27/11/2013 21:23 205. Yup.... 206. 207. - Me, 28/11/2013 22:41 208. Hey sandra what size pants does jordan wear 209. 210. - Sandra, 28/11/2013 22:43 211. I think a 16 212. 213. - Me, 28/11/2013 22:43 214. Ok thx 215. 216. - Sandra, 28/11/2013 22:44 217. No problem 218. 219. - Me, 20/12/2013 17:35 220. I left my phone in car and I know I don't suppose to have her till December 28 ...do I still pick her up today 221. 222. - Me, 22/12/2013 17:51 223. Hey Sandra jordan left her phone and ds here 224. 225. - Sandra, 22/12/2013 17:52 226. Can you just put it up for her. She'll get them Tuesday. 227. 228. - Me, 22/12/2013 17:53 229. Sure can 230. 231. - Sandra, 22/12/2013 17:54 232. Thanks 233. 234. - Me, 03/01/2014 14:43 235. Im here 236. 237. - Sandra, 03/01/2014 14:46 238. Ok they are coming 239. 240. - Me, 03/01/2014 14:46 241. Ok no hurry 242. 243. - Me, 04/01/2014 16:41 244. Thx for the tea 245. 246. - Sandra, 04/01/2014 16:43 247. No problem 248. 249. - Me, 17/01/2014 19:02 250. Hey Sandra the new dental insurance is MetLife and its suppose to be way better. The group id 27747 and the number is 1-888-825-
3368 251. 252. - Me, 19/01/2014 20:45 253. Hey sandra joey asked if my mom could get him 2 tickets to the rodeo for him and his date and I wanted to c if it needed to b on the weeke )
254. 255. - Sandra, 19/01/2014 20:49
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9/5/2014 Messages Print.txt 256. Either is fine 257. 258. - Me, 19/01/2014 20:54 259. Ok....cause a couple of ones he gave me were during the week...as soon as I find out which night she gets Ill let u no. 260. 261. - Sandra, 19/01/2014 20:55 262. Ok thanks 263. 264. - Me, 31/01/2014 09:22 265. Hey sandra we left Jordan backpack on porch cause she said she needs more clothes 266. 267. - Sandra, 31/01/2014 09:25 268. Thanks 269. 270. - Me, 27/02/2014 09:52 271. Hey sandra I am tryin to get everything together for the usher concert next Friday the 7th is all the kids gonna b able to go? 272. 273. - Sandra, 27/02/2014 09:54 274. I'm sorry we are going to get Jay that day and were spending the night there. 275. 276. - Me, 27/02/2014 09:55 277. Is jordan and joey going with u 278. 279. - Sandra, 27/02/2014 09:56 280. Jordan is for sure. I'm not sure about Joey because of Track 281. 282. - Me, 02/03/2014 15:05 283. Im out front can u come out 284. 285. - Sandra, 03/03/2014 11:00 286. Thank you so much for making the dirty rice. It was very hard keeping Jordan and Joey out of it. Also, do you know what days in April y'a 287. 288. - Sandra, 03/03/2014 11:00 289. the trip? I have to let her coach know. 290. 291. - Me, 03/03/2014 13:17 292. You are welcome and we will be gone April 18-21 293. 294. - Sandra, 03/03/2014 13:19 295. Thanks! Anything over Spring Break? Her Coach is trying to see who is going to be in town and when. 296. 297. - Me, 03/03/2014 13:22 298. Let me chk on spring break... 299. 300. - Sandra, 03/03/2014 13:23 301. Ok thank you 302. 303. - Me, 03/03/2014 13:23 304. Can I pick them up around 515 on friday for the rodeo 305. 306. - Sandra, 03/03/2014 13:24 307. Yes 308. 309. - Me, 03/03/2014 13:24 310. Ok we r gonna leave straight from your house to the rodeo 311. 312. - Sandra, 03/03/2014 13:27 313. Ok 314. 315. - Me, 03/03/2014 14:37 316. Mar 9-12 is when we gonna do something 317. 318. - Sandra, 03/03/2014 14:53 319. Thanks 320. 321. - Me, 03/03/2014 14:54 322. No prob 323. 324. - Sandra, 03/03/2014 14:54 325. Will y'all be out of town those 4 days are here. 326. 327. - Me, 03/03/2014 14:55 328. Out of town 329. 330. - Sandra, 03/03/2014 14:56 331. Ok 332. 333. - Me, 08/03/2014 12:30 334. Hey sandra joey really wants to go to the rodeo to see easton corbin but with leslie movn out it hurt us rt now...is there anyway u could 335. 336. - Sandra, 08/03/2014 12:33 337. No problem, I can bring you the money later today. 338. 339. - Me, 08/03/2014 12:34 340. Ok.thx...I no he really wanted them....he even asked my mom...lol... 341.
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9/5/2014 Messages Print.txt 342. - Sandra, 08/03/2014 12:36 343. Thank you. That's joeys favorite 344. 345. - Me, 08/03/2014 12:37 346. Well glad we could all come together and make it happen for him....and he loves where the seats are... 347. 348. - Sandra, 08/03/2014 12:40 349. Good, he is so excited. He said he is staying the night with y'all tonight. So I will send him with the money and clothes for Jordan 350. 351. - Me, 08/03/2014 12:41 352. Ok 353. 354. - Me, 08/03/2014 20:32 355. Hey sandra u dnt have to come tonight u can come tommorrow if u want 356. 357. - Me, 12/03/2014 21:54 358. Hey sandra I had joe days wrong. He is off friday 359. 360. - Sandra, 12/03/2014 23:12 361. Okay I will tell Jay 362. 363. - Me, 13/03/2014 11:03 364. Good morning. Is there anyway that anyone of the kids could spend the night tonight and joe could bring them hm early n the morn. I have a 365. 366. - Sandra, 13/03/2014 12:52 367. Jay will do it since he was going to spend time with joe anyway. 368. 369. - Me, 13/03/2014 14:27 370. Uncle dana is coming later so jay can wait till morn...thx tho 371. 372. - Sandra, 13/03/2014 14:28 373. Are you sure? 374. 375. - Me, 18/03/2014 19:12 376. Im sending jordan some dirty rice and ribs 377. 378. - Sandra, 18/03/2014 21:31 379. Thank you. She is eating now. 380. 381. - Me, 18/03/2014 21:40 382. Sure no problem I new she liked it. 383. 384. - Me, 20/03/2014 12:38 385. Hey Sandra I got joeys tix. He said he was gonna come by later and get them will jordan be with him? Just seeing who all I need to feed la 386. 387. - Sandra, 20/03/2014 14:05 388. Jordan can come with him. 389. 390. - Me, 20/03/2014 14:10 391. Ok 392. 393. - Me, 05/04/2014 16:21 394. Hey sandra would jordan be able to leave school early on Thursday when we are goin out of town around 215 if not no problem just tryin to 395. 396. - Sandra, 05/04/2014 16:25 397. That's fine. 398. 399. - Me, 05/04/2014 16:29 400. Ok thanks. 401. 402. - Me, 10/04/2014 18:08 403. Hey sandra do u have a gallon size baggy u could send with jordan. 404. 405. - Sandra, 10/04/2014 18:12 406. Just one? 407. 408. - Me, 10/04/2014 18:14 409. Yes Jake has a field trip tommorrow and has to put his lunch n a baggie and I didnt no I was out and he has a program now and dnt wanna go 410. 411. - Sandra, 10/04/2014 18:15 412. No problem 413. 414. - Me, 10/04/2014 18:19 415. Thanks a bunch 416. 417. - Me, 15/04/2014 16:01 418. Hey sandra jordan said she has a bathing suit and plenty of shorts just wanna make sure? She said they were Dom long shorts 419. 420. - Sandra, 15/04/2014 16:09 421. I think she does. 422. 423. - Me, 15/04/2014 16:10 424. Ok if not just let me no wanna make sure she has everything 425. 426. - Sandra, 15/04/2014 16:19 427. I will have her try stuff on when she gets home.
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9/5/2014 Messages Print.txt 428. 429. - Me, 15/04/2014 16:29 430. Ok thx 431. 432. - Me, 16/04/2014 16:09 433. Hey sandra the new dental insurance is metlife group id 191112 and ph number is 888-825-3368 434. 435. - Me, 16/04/2014 18:50 436. Sandra can u make sure Jordan's 3ds is charged also 437. 438. - Sandra, 16/04/2014 18:52 439. Not sure where it is. 440. 441. - Me, 16/04/2014 18:54 442. Oh ok she told me she was gonna bring it thats y I asked. Can joe pick her suitcase up on his way hm n the morn 443. 444. - Sandra, 16/04/2014 18:55 445. I will look for it. What time? I need to make sure someone is here 446. 447. - Me, 16/04/2014 18:56 448. Prbly 730-8 will that work? 449. 450. - Sandra, 16/04/2014 18:57 451. Yes 452. 453. - Me, 16/04/2014 18:57 454. Ok thx 455. 456. - Sandra, 16/04/2014 18:57 457. What time is Joe picking her up from school? 458. 459. - Me, 16/04/2014 19:02 460. Let me see exactly what time the flt leaves and I will tell u. 461. 462. - Me, 16/04/2014 19:45 463. Is 1 o'clock ok 464. 465. - Sandra, 16/04/2014 19:46 466. Ok 467. 468. - Sandra, 16/04/2014 21:59 469. Sorry to bother you so late. Is Jordan's phone charger there. Haven't seen it since the last time she spent the weekend there. 470. 471. - Me, 16/04/2014 22:01 472. Idk I will look but idk what it looks like if not dnt worry I will buy her another one 473. 474. - Sandra, 16/04/2014 22:02 475. It has an iPhone end and it's black or dark grey. 476. 477. - Me, 16/04/2014 22:03 478. Let me look hold on 479. 480. - Sandra, 16/04/2014 22:03 481. Ok 482. 483. - Sandra, 16/04/2014 22:09 484. Looks like it 485. 486. - Sandra, 16/04/2014 22:09 487. Thanks for checking 488. 489. - Me, 16/04/2014 22:10 490. Ok I put it n my purse 491. 492. - Me, 16/04/2014 22:10 493. No problem 494. 495. - Sandra, 16/04/2014 22:11 496. Thanks again. I found the DS too. Looks like she is ready. 497. 498. - Me, 16/04/2014 22:12 499. Ok. Josh got a bunch of new games for his bday and she wanted to play some 500. 501. - Sandra, 16/04/2014 22:14 502. Ok good. Y'all have fun. 503. 504. - Me, 24/04/2014 16:43 505. Joe doesn't have his ph but he is on the way to get Jordan 506. 507. - Sandra, 24/04/2014 16:44 508. Ok 509. 510. - Me, 07/05/2014 14:29 511. What time should I get jordan tonight? 512. 513.
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9/5/2014 Messages Print.txt 514. Joe 515. 516. - Sandra, 07/05/2014 14:55 517. Not sure, in the hospital 518. 519. - Me, 07/05/2014 14:57 520. Ok let me know 521. 522. - Sandra, 07/05/2014 14:58 523. I'm in the hospital for not be able to breath. Northwest 524. 525. - Me, 07/05/2014 15:23 526. Sorry to hear that hope you get better soon. Im available on Friday also if she can come for a little 527. 528. - Sandra, 07/05/2014 16:57 529. They are admitting me to ICU 530. 531. - Me, 07/05/2014 17:00 532. Call me on Jennifer phone. ... im sorry. To hear that 533. 534. - Sandra, 07/05/2014 17:01 535. I can't . That have strong oxygen on me. What's up 536. 537. - Me, 07/05/2014 17:04 538. Just to talk in person more personable. 539. 540. - Sandra, 07/05/2014 17:19 541. Can we talk later 542. 543. - Me, 07/05/2014 17:20 544. I was just wanting to talk about how you are doing 545. 546. - Sandra, 07/05/2014 17:21 547. Ok 548. 549.
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10/22/2014 Messages Print.txt
1. Print All 2. 3. Select a discussion: Me - Sandra ( 8323263522 ) 4. 5.
Sanda Lopez and Joe Davis 6. - Sandra, 11/01/2014 20:21 7. Haven't left yet. Jay wanted to come say bye too 8. 9. - Me, 11/01/2014 20:22 Text unchanged 10. Ok 11. 12. - Me, 15/01/2014 17:35 Me on Text is Joe Davis 13. Call me...I work Thursday and Saturday ...off Friday and Sunday. 14. 15. - Me, 17/01/2014 16:01 16. What's a good time. is Joey driving later? 17. 18. - Sandra, 17/01/2014 16:50 19. Not sure about Joey. Since he has to be at school early. 20. 21. - Me, 17/01/2014 16:52 22. Can't do what ever he need from here? 23. 24. - Me, 17/01/2014 16:52 25. I took off tomorrow to be here 26. 27. - Sandra, 17/01/2014 16:53 28. You knew already he had practice. I told you 29. 30. - Me, 17/01/2014 16:55 31. Did not think that would stop him from coming. I don't live that far to make much of a difference. 32. 33. - Sandra, 17/01/2014 16:56 34. I haven't spoke with him so I don't know 35. 36. - Me, 17/01/2014 16:58 37. I'm close...I did not think it would make that much of a difference. 38. 39. - Sandra, 17/01/2014 16:59 40. I will have him call u when he gets home. 41. 42. - Sandra, 17/01/2014 17:00 43. What time on Jordan? 44. 45. - Me, 17/01/2014 17:05 46. I'm ready....I didn't know joey wasn't coming I assumed he was coming time is important i though what ever he needs to do he can do it from he 47. 48. - Sandra, 17/01/2014 17:07 49. I'm not saying he's not coming I'm just not sure he's staying the night 50. 51. - Sandra, 17/01/2014 17:09 52. You need to talk to him but he's at school til 7:30 53. 54. - Me, 17/01/2014 17:11 55. This is not the way things r suppose to be. I expected some time im off this weekend. 56. 57. - Me, 17/01/2014 17:13 58. I don't want to just pay I want more and im just trying to get the time that belongs to me. I have a extra vehicle if that's a problem. 59. 60. - Sandra, 17/01/2014 17:13 61. I'm not saying your not getting time but what is he suppose to do about practice? This is the last two weeks of this. There's tonight and tomor 62. 63. - Sandra, 17/01/2014 17:14 64. g and Sunday 65. 66. - Sandra, 17/01/2014 17:15 67. Your taking this out of content. Not arguing with you. Damn your still going to get time. 68. 69. - Me, 17/01/2014 17:15 70. Same thing he would do from your house. ...no difference if there is let me know. 71. 72. - Me, 17/01/2014 17:16 73. Im on my way got a minute? 74. 75. - Sandra, 17/01/2014 17:17 76. Ok 77. 78. - Me, 17/01/2014 17:37 79. Here 80. 81. - Sandra, 17/01/2014 17:39 82. Give us a few minutes 83. 84. - Me, 17/01/2014 19:46 85. Joey there
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10/22/2014 Messages Print.txt 86. 87. - Sandra, 30/01/2014 10:26 88. R u getting Jordan tonight 89. 90. - Me, 30/01/2014 10:26 91. Yes 92. 93. - Sandra, 30/01/2014 10:51 94. Don't forget Joey has that play tonight. Tomorrow and Saturday 95. 96. - Me, 30/01/2014 10:52 97. Ok 98. 99. - Sandra, 30/01/2014 10:52 100. When do you want to pick up Jordan 101. 102. - Me, 30/01/2014 11:07 103. Wanted to see if I just keep her tonight I work on Saturday. 104. 105. - Sandra, 30/01/2014 13:02 106. Ok 107. 108. - Sandra, 30/01/2014 13:03 109. But I have to wash her uniform pants for school. 110. 111. - Me, 30/01/2014 13:04 112. I will ...I have a washer and dryer. 113. 114. - Sandra, 30/01/2014 13:05 115. That's fine 116. 117. - Me, 30/01/2014 13:07 118. Just let me know what time 119. 120. - Sandra, 30/01/2014 13:08 121. 5 or so. Do you lunch for her too? 122. 123. - Me, 30/01/2014 13:08 124. Yes 125. 126. - Sandra, 30/01/2014 13:09 127. Okay... Will 5 work? 128. 129. - Me, 30/01/2014 13:11 130. Thats good ill be there. 131. 132. - Sandra, 30/01/2014 13:12 133. Ok 134. 135. - Me, 30/01/2014 16:56 136. Here 137. 138. - Sandra, 30/01/2014 17:00 139. Ok 140. 141. - Me, 30/01/2014 20:13 142. Hey sandra do u have the money to get us 3 adult and 3 kids tix to the play tommorrow night and I can give it to u tomorrow 143. 144. - Sandra, 31/01/2014 16:23 145. What time 146. 147. - Me, 31/01/2014 16:24 148. I'm ready 149. 150. - Sandra, 31/01/2014 16:25 151. 5 ? 152. 153. - Me, 31/01/2014 16:25 154. 155. Ok 156. 157. 158. - Me, 31/01/2014 16:57 159. Here 160. 161. - Me, 31/01/2014 19:08 162. Here 163. 164. - Sandra, 31/01/2014 19:09 165. Where 166. 167. - Sandra, 31/01/2014 19:10 168. At Spring? 169. 170. - Me, 31/01/2014 19:10 171. Yea
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10/22/2014 Messages Print.txt 172. 173. - Sandra, 31/01/2014 19:11 174. 175. Ok. Let me know how it goes 176. 177. - Me, 31/01/2014 19:11 178. Ok. 179. 180. - Me, 05/02/2014 18:45 181. What are the kid doing on Saturday. Wanted to see they had some free time...I work till 6 tomorrow and josh has something at school tomorrow 182. 183. - Sandra, 05/02/2014 18:49 184. We will be in San Marcus this weekend. Im sorry 185. 186. - Me, 05/02/2014 18:50 187. Ok...thanks 188. 189. - Me, 10/02/2014 13:37 190. Have kids call me later... and I'm off the whole weekend. So I'm looking foward to it . 191. 192. - Sandra, 10/02/2014 13:40 193. Can I call you in a few? 194. 195. - Me, 10/02/2014 13:40 196. Ok 197. 198. - Me, 11/02/2014 17:45 199. Have kids call... i need to talk to Joey about those tickets. .. need to find out tonight. 200. 201. - Sandra, 11/02/2014 18:03 202. I'm not home will have him call 203. 204. - Me, 13/02/2014 16:10 205. Joey said he was coming tonight will wait on him and Jordan to come. 206. 207. - Sandra, 13/02/2014 16:15 208. Did he say what time? 209. 210. - Me, 13/02/2014 16:15 211. No 212. 213. - Sandra, 13/02/2014 16:17 214. Oh okay. This child does not tell me anything. Didn't know he had track after school. 215. 216. - Me, 13/02/2014 16:20 217. He didn't tell me either that he had practice after school 218. 219. - Sandra, 13/02/2014 16:22 220. Oh I thought he did 221. 222. - Me, 13/02/2014 17:15 223. Hey let's reschedule I feel like complete s*** right now. They probably won't get here till after 7 224. 225. - Sandra, 13/02/2014 18:07 226. Are you sure? 227. 228. - Me, 13/02/2014 18:10 229. Yes got bad heartburn and gonna hop in bed soon. 230. 231. - Sandra, 13/02/2014 18:11 232. Ok hope u feel better 233. 234. - Me, 22/02/2014 17:30 235. Call me 236. 237. - Me, 22/02/2014 18:21 238. I guess call me when you get free I'm off next weekend. 239. 240. - Me, 22/02/2014 19:29 241. Have Joey call me 242. 243. - Sandra, 22/02/2014 19:33 244. Ok 245. 246. - Me, 25/02/2014 12:36 247. Hey just want to know if Jordan was free tomorrow night could I pick her up and bring her back home because I have to work Thursday. 248. 249. - Sandra, 25/02/2014 13:10 250. She has practice from 8 to 9:30 tomorrow 251. 252. - Me, 25/02/2014 13:11 253. Ok I can do 5 to 7:30 254. 255. - Me, 25/02/2014 13:12 256. And off Friday Saturday and Sunday. 257.
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10/22/2014 Messages Print.txt 258. - Sandra, 25/02/2014 13:12 259. Ok 260. 261. - Me, 25/02/2014 13:13 262. We need a schedule. 263. 264. - Sandra, 25/02/2014 13:15 265. She has practice Fri. 6:30 to 8:30 and game Saturday She has to be there at 9:45 , game at 10:30. Might have Sun. Practice at 4:30. Joey ha 266. 267. - Sandra, 25/02/2014 13:15 268. is weekend in San Antonio. 269. 270. - Sandra, 25/02/2014 13:15 271. I've printed their schedules for you. 272. 273. - Me, 25/02/2014 13:21 274. Its no give and take here.. its a bunch of dates that s not being made up. In order for this to work if loose time it has made up somewhere. .. 275. 276. - Me, 25/02/2014 13:24 277. My schedule. . Has to work with what they're doing. My schedule has to be taken into consideration. Because if it stays this way we are back t 278. 279. - Sandra, 25/02/2014 13:25 280. I warned you about select. You said okay. Not only that you said you would get her where she needs to be. I'm giving you tomorrow. And Sunday i 281. 282. - Sandra, 25/02/2014 13:26 283. aybe. I think the coach said every other Sun.. Plus you weren't worried about your last Thursday when you were out of town. Remember you agree 284. 285. - Me, 25/02/2014 13:29 286. Correct. . I agreed to a plan that allowed me to spend time with her also. So this is 1 of 2 parts ,so what is the rest of the plan. 287. 288. - Me, 25/02/2014 13:32 289. So is she playing for 1 or 2 teams? I thought it was for the 1 in the woodlands. 290. 291. - Sandra, 25/02/2014 13:32 292. Not only that you gave up your weekend because you were supposedly sick. But, yet your daughter see you on face at Jared shopping for a ring a 293. 294. - Sandra, 25/02/2014 13:32 295. n event the next day. Really? 296. 297. - Me, 25/02/2014 13:33 298. One day 299. 300. - Sandra, 25/02/2014 13:33 301. Will explain that later. 302. 303. - Me, 25/02/2014 13:46 304. Ok... I'm. Not fighting with you. I need a schedule That work with mine. Joey can do what he wants to. You also told me they were coming over 305. 306. - Sandra, 25/02/2014 13:50 307. I'm not fighting with you either and we do u do this when I'm at work. I never bother u at work. 308. 309. - Me, 25/02/2014 13:51 310. This is not working. We fixed the money your part now I need to fix mine.. sorry I won't bother you again I thought you could text. 311. 312. - Sandra, 25/02/2014 13:53 313. We will talk later. But, one thing. You never said trade weekends. See your boys activities come before Jordan's and that's not right either. 314. 315. - Sandra, 25/02/2014 13:53 316. u later. 317. 318. - Me, 25/02/2014 14:02 319. Really. .. we have nothing else to say don't bother calling. 320. 321. - Sandra, 25/02/2014 14:17 322. Look you keep talking to me like I'm a child and I'm not. talk to me like I'm an adult. Maybe then we could agree on stuff. And I have never st 323. 324. - Sandra, 25/02/2014 14:18 325. from seeing her. And I've given up my weekends several times just to make sure you get time. But, yet I'm not trying to work with you. I will c 326. 327. - Sandra, 25/02/2014 14:18 328. is evening. And explain her schedule. 329. 330. - Me, 25/02/2014 14:29 331. I won't ask you for any favors anymore. I know what time is mine and what not there is a simple way to do things. 332. 333. - Sandra, 25/02/2014 14:31 334. Hard to explain on text will call u. We can figure this out. 335. 336. - Me, 26/02/2014 14:19 337. What time r they coming? 338. 339. - Sandra, 26/02/2014 14:47 340. When Joey gets home. I thinking they are going to cancel practice. 341. 342. - Me, 26/02/2014 15:00 343. Ok
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10/22/2014 Messages Print.txt 344. 345. - Me, 27/02/2014 10:00 346. Not trying to fight but We already spent over 200 dollars on tickets and I made sure before we did they were free. So it is a must that Joey a 347. 348. - Sandra, 27/02/2014 10:02 349. Tony trying to fight either. You never asked me if they were free on that day. 350. 351. - Sandra, 27/02/2014 10:04 352. Wow.... Stupid auto correct. It's suppose to be not instead of tony 353. 354. - Me, 27/02/2014 10:09 355. I explained it and I also told you Joey wanted tickets for a school night ... 356. you also explained to me that you don't want to lose money after putting Jordan in 2 sports this issame thing. ..what should I expect because thi 357. 358. 359. - Sandra, 27/02/2014 10:11 360. I will see what I can do not promising anything yet. Will let you know tonight. And as for Joey you said school night. Friday is not a school n 361. 362. - Me, 27/02/2014 10:19 363. Jennifer also remember me talking to you she wanted to make sure before she spent the money. Joey said he was free and told me again last nig 364. 365. - Me, 27/02/2014 10:23 366. I forgot thats Spring break right? 367. 368. - Sandra, 27/02/2014 10:25 369. Can I call you in a few. 370. 371. - Me, 27/02/2014 10:25 372. Yes 373. 374. - Sandra, 01/03/2014 11:17 375. Let your daughter see you. Cause she is mad right now 376. 377. - Sandra, 03/03/2014 11:57 378. Jordan's coach needs the dates Jordan will be on y'all's trip in April. And needs to know if she will be here all week during Spring Break. She 379. 380. - Sandra, 03/03/2014 11:57 381. know ASAP 382. 383. - Me, 07/03/2014 08:38 384. Sorry I missed your call .... I feel asleep early last night. 385. 386. - Me, 20/03/2014 17:12 387. Almost there. 388. 389. - Me, 27/03/2014 17:53 390. Just checking in and seeing what schedule is for weekend I work sat but off Friday and Sunday. I'm at work today. 391. 392. - Me, 09/04/2014 16:18 393. We still on for this weekend with Jordan. Remember we switched 394. 395. - Sandra, 11/04/2014 17:00 396. When do u want Jordan back? 397. 398. - Me, 24/04/2014 10:36 399. What time should I pick Jordan up tonight? 400. 401. - Me, 24/04/2014 20:20 402. Any problems. .. you have go thru me....and what they told me was use my firefighters discount not yours then talk about discount not me. Jenn 403. You know I will just take my time. . Cause you have my money. Fine I won't ask you for any favors and you don't ask me for any. 404. 405. P.s im not trying to be a dick 406. You got what you wanted now its time for me to get what I want because guess what this is not working... as long as im paying my part im doing my 407. 408. 409. 410. 411. - Sandra, 24/04/2014 20:23 412. We will talk later wasn't trying to fight with you. 413. 414. - Me, 24/04/2014 20:27 415. Im at a loss and im not losing any more. Im not fighting I should be there with our daughter and in comfort and I put money into it also....I 416. 417. - Me, 24/04/2014 20:29 418. Time sorry not money 419. 420. - Sandra, 24/04/2014 20:31 421. r plans. Not trying to keep you out of the loop. 422. 423. - Sandra, 24/04/2014 20:31 424. Remember not Jordan's fault 425. 426. - Sandra, 24/04/2014 20:31 427. My dad has paid for all of this. Not me. Again don't want to fight. I have her tournament schedule now. We need to meet up and go over that and 428. 429. - Sandra, 24/04/2014 20:32
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10/22/2014 Messages Print.txt 430. She see serves her dad time like you deserve your daughter time. 431. 432. - Sandra, 24/04/2014 20:32 433. Opps deserves 434. 435. - Me, 27/04/2014 12:07 436. Have Jordan call me later 437. After her. Practice. ..im also off Thursday. ... and this weekend. 438. 439. - Me, 27/04/2014 14:46 440. Is Jordan available? 441. 442. - Sandra, 27/04/2014 14:47 443. She not at practice she's at tournament 444. 445. - Me, 27/04/2014 14:48 446. Ok ...have her call when over. 447. 448. - Me, 28/04/2014 18:29 449. Im home missed ur call what's 450. Up 451. 452. - Me, 30/04/2014 08:36 453. If Jordan don't have anything on Thursday I'll see if I can keep her on Thursday night. 454. 455. - Sandra, 30/04/2014 19:12 456. That's fine 457. 458. - Me, 01/05/2014 14:39 459. Thanks ....What Time? 460. 461. - Sandra, 01/05/2014 16:15 462. Not sure, she Has a group project she's working on. 463. 464. - Me, 01/05/2014 16:16 465. ???? 466. 467. - Me, 01/05/2014 16:17 468. Details... don't understand 469. 470. - Sandra, 01/05/2014 16:20 471. Honestly not sure what time. Will let you know when she gets home. Her and Savannah have been working on a group project 472. 473. - Me, 01/05/2014 16:51 474. Not sure if you called phone died. 475. 476. - Sandra, 01/05/2014 16:56 477. 30 mins. She needs to finish project at your house. 478. 479. - Me, 01/05/2014 17:02 480. Ok 481. 482. - Me, 02/05/2014 07:17 483. A little upset with Joey after yesterday....i tried to be fair about our time and work out a plan that he give me one night and that has happen 484. 485. - Me, 02/05/2014 07:47 486. 487. I hate to use our court order but I'm left without a choice. 488. I thought I was being fair....when was the last time Joey came as he was supposed to? 489. 490. - Me, 04/05/2014 12:05 491. Next time ....touch base with me. I have no idea what happened when I checked on Jordan all I knew is that she already left . All we discussed 492. 493. P.s I never received her schedule 494. 495. 496. - Me, 04/05/2014 12:41 497. Fine...don't communicate...I don't know how you see this working but ok. 498. I work Thursday can I have her on Wednesday. 499. 500. - Me, 09/05/2014 12:53 501. How r you doing? 502. 503. - Sandra, 09/05/2014 12:56 504. Can not believe I have pnuenmonia and congestive heart failure. I will here for a good while 505. 506. - Me, 09/05/2014 12:57 507. Im sorry to hear that...what room r you in. 508. 509. - Sandra, 09/05/2014 13:00 510. Not even sure I just know ICU 511. 512. - Me, 09/05/2014 13:01 513. What r the visitation schedule. 514. 515. - Me, 09/05/2014 13:03
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10/22/2014 Messages Print.txt 516. 517. Is 518. 519. - Sandra, 09/05/2014 13:05 520. Not sure of that either. Call Joey he knows 521. 522. - Me, 09/05/2014 13:05 523. Ok 524. 525. - Me, 09/05/2014 17:29 526. Hope you get better soon. Can't stand to see you in there. 527. We need you so please get better soon. 528. 529. - Me, 10/05/2014 12:11 530. So ...how r you doing today? 531. 532. - Sandra, 10/05/2014 12:31 533. A little better. Now where close to braking out 534. 535. - Me, 10/05/2014 12:36 536. Well im glad that your feeling better it was hard seeing you there... we have been apart off each other life for more than half of our lives. 537. So im good now that ur getting better. 538. 539. 540. 541. - Sandra, 10/05/2014 16:03 542. Thanks... I will be in iICU awhile 543. 544. - Me, 10/05/2014 16:06 545. Well...let me know how I can help. Im off Monday and Tuesday. .. 546. 547. - Sandra, 10/05/2014 16:08 548. I will, thanks 549. 550. - Sandra, 10/05/2014 16:48 551. S 552. 553. - Sandra, 10/05/2014 16:49 554. This shit is scary and real 555. 556. - Me, 10/05/2014 16:53 557. I know....I wanted to stay the other day. I think when everything is said and done you will be better than you have been. 558. I'll come and sit with you some days. 559. I know its been awhile since we have really talked but you are still my best friend. 560. 561. - Sandra, 10/05/2014 17:12 562. That would. Be nice 563. 564. - Me, 10/05/2014 17:12 565. Ok 566. 567. - Me, 11/05/2014 09:32 568. Happy mother s day... Hope you have a good day. 569. 570. - Me, 11/05/2014 12:40 571. How r u doing today? 572. 573. - Sandra, 11/05/2014 15:26 574. I'm okay no change 575. 576. - Me, 11/05/2014 15:28 577. Ok...stop by for a little after work. ..How's Jay holding up 578. 579. - Sandra, 11/05/2014 15:29 580. He's good... I think it is scaring them all pretty good. 581. 582. - Me, 11/05/2014 15:30 583. All of us.... 584. 585. - Sandra, 11/05/2014 15:32 586. And yea. Especially thinking I could of died 587. 588. - Me, 11/05/2014 15:35 589. No good. ..enough of that talk you should be home enjoying your day.not this 590. 591. 592. P.s. 593. With our occasional fight 594. 595. - Sandra, 11/05/2014 15:36 596. Lol... 597. 598. - Me, 11/05/2014 15:39 599. Yeah. ..to bad cause hooters is free for mother's day and I know how y'all like wings. 600. 601. - Sandra, 11/05/2014 15:40
7/8
10/22/2014 Messages Print.txt 602. Lol.... Have you spoke to your mom? 603. 604. - Me, 11/05/2014 15:41 605. Not yet... still thinking about it. 606. 607. - Sandra, 11/05/2014 15:43 608. You should . Even if it's just for that reason. 609. 610. - Me, 11/05/2014 15:46 611. 612. Working up to it..maybe later 613. 614. - Sandra, 11/05/2014 15:47 615. Got you maybe the boys could call and break the ice 616. 617. - Me, 11/05/2014 15:48 618. She will like that. 619. 620. - Sandra, 11/05/2014 15:50 621. Can you send me the number so I can have our boys call? 622. 623. - Me, 11/05/2014 15:52 624. (832) 468-1464 625. 626. - Sandra, 11/05/2014 16:43 627. They called 628. 629. - Me, 11/05/2014 16:44 630. Ok 631. 632. - Me, 12/05/2014 10:00 633. On my way...do you want anything 634. 635. - Me, 14/05/2014 10:26 636. Just checking in...how are you doing today? 637. Im at work and hate that I here today. ..so please when ever you can send me a text back. 638. 639.
8/8
APPENDIX F
I. 1017/201411:42:04 AM Chris Daniel - District Clerk Harris County Envelope No. 2743873
2014-58410 / Court: ~ By: Anais Aguirre Filed: 1017/20149:58:17 AM
NO. _
IN THE INTEREST OF § IN THE DISTRICT COURT §
J.A.D.AND J.A.D. § JUDICIAL DISTRICT §
CHIT...DREN § HARRIS COUNTY, TEXAS
ORIGINAL PETITION IN SUIT AFFECTING THE PARENT-CHll..D RELATIONSHIP
1. Discovery Level
Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas
Rules of Civil Procedure.
2. Parties
This suit is brought by FLOYD DANIEL LOPEZ and IRMA OLGA llMENEZ,
Petitioners. The last three numbers of FLOYD DANIEL LOPEZ's driver's license number are
885. The last three numbers of FLOYD DANIEL LOPEZ's Social Security number are 906.
The last three numbers of IRMA OLGA llMENEZ's driver's license number are 363. The last
three numbers of IRMA OLGA JIMENEZ's Social Security number are 498.
Respondent is JOSEPH ANDRE DAVIS.
Petitioners are the maternal grandparents of the children the subject of this suit.
Petitioners have standing to bring this suit in that neither parent had their parental rights
terminated; both petitioners are the biological maternal grandparents of the children in question
and have executed affidavits on knowledge and belief which contain supporting facts that denial
of their possession or access to the children would significantly impair the children's physical
health or emotional well-being. Further, the maternal grandparents are the parents of the
children's mother who died in May of this year.
I:::
Original Petition In Suit Affecting The Parent Child Relationship Page 1
3. Jurisdiction
No court has continuing jurisdiction of this suit or of the children the subject of this suit.
4. Children
The following children are the subject of this suit:
Name: JOSEPH ANDRE DAVIS II
Sex: M
Birth date: 10/30/1995
County of Residence: Harris
Name: JORDAN ADRIANNA DAVIS
Sex: F
Birth date: 07/26/2002
County of Residence: Harris
5. Person Entitled to Citation
The father of the children the subject of this suit is JOSEPH ANDRE DAVIS.
Process should be served at 3323 Rose Trace Dr., Spring, Texas 77386.
There are court-ordered conservatorships, court-ordered guardianships, or other court-
ordered relationships affecting the children the subject of this suit.
Information required by section 152.209 of the Texas Family Code will be provided in an
affidavit attached as Exhibit A.
6. Health Insurance Information
Information required by section 154.181(b) of the Texas Family Code is provided in the
statement attached as Exhibit B.
7. Property
:: ::
Original Petition In Suit Affecting The Parent Child Relationship Page 2
No property of consequence is owned or possessed by the children the subject of this suit.
8. Conservatorship
The mother of the children and prior managing conservator with the right to determine
the residence of the children has died. The appointment of the father as sole managing
conservator would not be in the best interest of the children. It is in the best interest of the
children that Petitioners and JOSEPH ANDRE DAVIS be appointed joint managing conservators
of the children.
Petitioners should be designated as the conservators who have the exclusive right to
designate the primary residence of the children. The residence of the children should be
restricted to the existing school district of the children in Harris County.
Petitioner requests the Court to appoint a parenting facilitator. There is good cause for
appointment of a parenting facilitator in this is a high conflict case and the appointment would be
in the best interest of the children.
9. Petitioners' Supporting Affidavits:
Petitioner Jimenez affidavit is attached as Exhibit C
Petitioner Lopez affidavits are attached as Exhibits D and Exhibit E
10. Support
JOSEPH ANDRE DAVIS, Respondent, is obligated to support the children and should be
ordered by the Court to make payments for the support of the children and to provide medical
child support in the manner specified by the Court.
JOSEPH ANDRE DAVIS II, a child the subject of this suit, is enrolled under chapter 25
of the Texas Education Code in an accredited secondary school in a program leading toward a
high school diploma and is complying with the minimum attendance requirements of subchapter
:::: 2:::: :: Original Petition In Suit Affecting The Parent Child Relationship Page 3
C of chapter 25 of the Education Code. The Court is requested to order that payments for the
support of this child be continued until the end of the month in which the child graduates from
high school.
11. Request for Temporary Restraining Order
Petitioner requests the Court to dispense with the necessity of a bond, and Petitioner
requests that Respondent be temporarily restrained immediately, without hearing, and after
notice and hearing be temporarily enjoined, pending the further order of this Court, from:
Disturbing the peace of the children or of another party.
Withdrawing the children from enrollment in the school or day-care facility where the
children are presently enrolled.
Hiding or secreting the children from Petitioner.
Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or
within the hearing of the children.
Consuming alcohol within the 12 hours before or during the period of possession of or
access to the children.
Canceling, altering, failing to pay premiums, or in any manner affecting the present level
of coverage of any health insurance policy insuring the children.
12. Request for Attorney's Fees, Expenses, Costs, and Interest
It was necessary for Petitioner to secure the services of Norman E. Lester, Jr., a licensed
attorney, to preserve and protect the children's rights. Respondent should be ordered to pay
reasonable attorney's fees, expenses, and costs through trial and appeal, and a judgment should
be rendered in favor of this attorney and against Respondent and be ordered paid directly to
Petitioner's attorney, who may enforce the judgment in the attorney's own name. Petitioner
33::53::33:: EE :2 2222222 2222 mE:::!
Original Petition In Suit Affecting The Parent Child Relationship Page 4 requests postjudgment interest as allowed by law.
13. Prayer
Petitioner prays that citation and notice issue as required by law and that the Court enter
its orders in accordance with the allegations contained in this petition.
Petitioner prays that the Court immediately grant a temporary restraining order
restraining Respondent, in conformity with the allegations of this petition, from the acts set forth
above, and Petitioner prays that, after notice and hearing, this temporary restraining order be
made a temporary injunction.
Petitioner prays that, on final hearing, the Court enter a permanent injunction enjoining
Respondent, in conformity with the allegations of this petition, from the acts set forth above.
Petitioner prays for attorney's fees, expenses, costs, and interest as requested above.
Petitioner prays for general relief.
Respectfully submitted,
N.E. Lester, Jr. 3730 Kirby Drive, Suite 1200 Houston, Tx 77098 Tel 713-660-6839 Fax 713-664-0395
By: N. E. Lester. JL.
Norman E. Lester, Jr. State Bar No. 12236650 HouTxLawyer@aol.com Attorney for Petitioners
:::
Original Petition In Suit Affecting The Parent Child Relationship Page 5
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this October 8,2014
Certified Document Number: 62660436
Chris Daniel DISTRICT CLERK HARRlS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated docmnents are valid. H there is a question regarding the validity of this document and or seal ple as e e-mail support@hcdistrictclerk.com
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Chris Daniel, DISTRICT CLERK HARmS COUNTY, TEXAS
In accordance with Texas Goverrunent Code 406.013 electronically transmitted authenticated documents are valid. H there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com
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Certified Document Number: 62660441
Chris Daniel DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please a-mail support@hcdistJictclerk.com
2014-5841 0 / Court: •
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$t~_n:N«J~$E~~~ .. nu$ 401ty~l'M!f;'bfi:.2(j/ s:
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I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this October 8,2014
Certified Document Number: 62660442
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Govenunent Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com ~+l-2{)449~68;47-AM-------------- Chris Daniel - District Clerk Harris County Envelope No: 2743873
2014-58410 / Court:?-t1.tS By: AGUIRRE, ANAIS Filed: 10/7/20149:58:17 AM
NO. _ p.?
IN THE INTEREST OF § IN THE DISTRICT COURT § {j\50 J.A.DAND J.A. D. § JUDICIAL DISTRICT § §
CHILDREN § HARRIS COUNTY, TEXAS
NOTICE OF HEARING FOR TEMPORARY ORDERS
Notice is given to Respondent, JOSEPH ANDRE DAVIS, and Respondent is ORDERED
to appear in person before this Court in the courthouse at the Civil Courthouse, 201 Caroline,
Houston, Texas, on ~. \\', 2a~ at ~·.{)O.ttr'The children the subject of this suit are JORDAN ADRIANNA DAVIS and JORDAN ADRIANNA DAVIS. Petitioner is FLOYD
DANIEL LOPEZ and IRMA OLGA JIMENEZ.
The purpose of the hearing is to determine whether the temporary injunction prayed for
should be granted to enjoin Respondent from the following:
Disturbing the peace of the children or of another party.
Withdrawing the children from enrollment in the school or day-care facility where the
children are presently enrolled.
Hiding or secreting the children from Petitioner.
Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or
within the hearing of the children.
Consuming alcohol within the 24 hours before or during the period of possession of or
access to the children.
Canceling, altering, failing to pay premiums, or in any manner affecting the present level
of coverage of any health insurance policy insuring the children.
Notice of Hearing for Temporary Orders Page 1
IT IS FURTHER ORDERED that any authorized person eighteen years of age or older
who is not a party to or interested in the outcome of this suit may serve any citation, notice, or
process in this case.
SIGNED on ----- OQI - 829M
~.,
Associate ESIDING ~ APPROVED AS TO FORM ONLY:
N.E.Lester, Jr. 3730 Kirby Dr., Suite 1200 Houston, Tx 77098 Tel 713-660-6839 Fax 713-664-0395
By: Norman E. Lester. Ir.
Norman E. Lester, Jr. Attorney for Petitioner State Bar No. 12236650 HouTxLawyer@aol.com
Notice of Hearing for Temporary Orders Page 2
Certified Document Number: 62660440 - Page 1 of 2
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I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this October 8,2014
Certified Document Number: 62660440
Chris Daniel DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal pIe as e e-mail support@hcdistrictclerk.com
CAUSE NO. 201458410
RECEIPT NO. 0.00 ATY ********** TR # 82367674 PLAINTIFF: LOPEZ, FLOYD DANIEL In The 245th vs. Judicial District Court DEFENDANT: DAVIS, JOSEPH ANDRE of Harris County, Texas 245TH DISTRICT COURT Houston, TX
PRECEPT
THE STATE OF TEXAS County of Harris
TO ANY SHERIFF OR CONSTABLE OF TEXAS Or Other Authorized Person
YOU ARE HEREBY COMMANDED to serve, DAVIS, JOSEPH ANDRE
with the accompanying certified copy of ORDER SETTING HEARING and copy of NOTICE OF HEARING FOR TEMPORARY ORDERS
HEREIN FAIL NOT, but of this notice make due return as the law directs.
ISSUED AND GIVEN UNDER MY HAND AND THE SEAL OF SAID COURT , at Houston, Texas, this 8th day of October, 2014.
. ~~ ~~~;;
.
Issued at request of: ./ :::;t;-..u·····.. ·· .. ······15'"\c\ fo....
(10""· CHRIS ~~le.cf Clerk LESTER, NORMAN EUGENE JR. Harris County, Texas : o: : z:
3730 KIRBY DR SUITE 1200 :
. l-"(). \ .: -c -i :
: 201 Caroline Houston, Texas 77002 HOUSTON, TX 77098 (P.O. Box 4651, Houston, Texas 77210)
\ ~~ ~~~./ Tel: (713) 660-6839 -,-....................
,0* ~ ....
Bar No.: 12236650 GENERATED BY: ROQUEMORE, AUDREY MA 73Z//9941839
OFFICER/AUTHORIZED PERSON RETURN
Came to hand at o'clock .M., on the day of
Executed at (address) in IJ.
County at o'clock --6-11-,,---. M., on the Ie) day of o"..;o~, ~~~ by delivery to the within named _
THE ACCOMPANYING
To certify which I affix my hand officially the day of
Fee: $ _
of County, Texas
By _ Deputy
On this day, _________________________________________________ , known to me to be the person whose signature appears on the foregoing return, personally appeared . After being by me duly sworn, he/she stated that this notice was executed by him/her in the exact manner recited on the return.
SWORN TO AND SUBSCRIBED BEFORE ME, on this day of
Notary Public
N.INT.PRER.P ml~I~III~III~II~nllll~~II~mllli
No. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT OF
J. A. D. HARRIS COUNTY, TEXAS
A CHILD 245TH JUDICIAL DISTRICT
Respondents affidavit
On July 18, 2014,1 was served with a Citation and a Restraining Order issued by Chris Daniel-District Clerk, Harris County at the request of Lester, Norman Eugene Jr. an attorney for the parents of my two children, Joseph Andre Davis II D.O.B. October 30,1995 (18) and Jordan Adrianna Davis D.O.B. July 26, 2002 who was 11 year of age at the time the Citation and Restraining Order were signed) deceased mother, Sandra Lopez. They were both signed on July 3, 2014 by Associate Judge Cooper.Both the Citation and the Restraining Order name Sandra Lopez deceased as the plaintiff and myself (Joseph Andre Davis) as the defendant. The Citation was claimed to have been filed on June 30,2014 by Sandra Lopez whose death occurred on May 24, 2014 which is more than one month prior to the date of June 30, 2014.
The instruments attached to the citation the deceased Sandra Lopez was alleged to have filed in the 245th Judicial District Court requesting Modification of Child-Parent Relationship consist of a copy of a Child Support Review Order dated November 17, 2003 where a routine negotiation conference was held pursuant to Texas Family Code Chapter 233 and Temporary Restraining Order, and Order Setting Hearing for Temporary orders.
The Citation served to me on Friday, July 18, 2014 included in it the statement "YOU HAVE BEEN SUED, you may employ an attorney. If you or your attorney do not file a written answer with the District Clerk who issued this citation by 10:00 a. m. on the Monday next following the expiration of 20 days AFTER you were served this citation and petition a default judgment may be taken against you".
I spent almost the whole night and most of the following morning trying to find an attorney. Every attorney I contacted said that they could not represent me on such short notice, but I returned back to his court regardless on Thursday, July 24, 2014. Without batting an eye lid the judge immediately stripped me of the Managing Conservatorship of my 11 year old child Jordan Adrianna Davis. He gave me and her maternal grandparents, Floyd Daniel Lopez and Irma Olga Jimenez rotating equal visitation.
After that he rescheduled me to come back at 1:30 p.m. on Wednesday, August 13 which just happened to be the grandparents’ rotation turn. At the end of the legal hearing which had previously been presented to me as “mediation", I had been stripped of my parental assumption. No legally documented evidence or legal proof such as police reports or CPS reports or any other legal reports or documents from anywhere or any persons at all were ever presented. Floyd Daniel Lopez, Irma Olga Jimenez, my two sons whom they had somehow managed to entice or coerce to make false accusations of abuse that were false and erroneous..
Floyd Daniel Lopez and Irma Olga Jimenez also coerced and enticed my son John Daniel to illegally falsify documents claiming to be the legal guardian of Jordan Adrianna Davis in order to gain access to her share of Sandra's life insurance and to claim money from the Teachers Retirement Association, and MetLife designated to contribute towards her support.
There has never been any documented legal evidence to show or prove that Managing Conservatorship of my child should have been revoked from me or that JAD should have been removed from my home or that her maternal grandparents should have been given Temporary Managing Conservatorship because she was in imminent emotional or physical danger.
The unambiguous mandate of the Texas Family Codes is that a non-parent cannot be awarded Managing Conservatorship of a child in lieu of a parent unless a preponderance of clear and convincing evidence demonstrate that the parent as a Managing Conservator would significantly harm the child physically or significantly harm the child emotionally. Even if Irma Olga Jimenez and Floyd Daniel Lopez did have standing to sue for Temporary Managing Conservatorship (which they did not) they still would fail to meet the burden of proof in a fair and just court decision (which it was not).
The Family Code mandates that in the absence of a history of domestic violence, a parent "shall" be appointed sole Managing Conservator. l reiterate, I do not have a history of any type of violence,
When Sandra first found out just how ill she was, by mutual agreement, we decided that it was in the best interest of Jordan that I take her into my home until she was able to care for her again. I drove Jordan to and from school during that time. Sandra died while Jordan was in my care and possession. I immediately informed Irma Olga Lopez that Jordan would be living in my home on a permanent basis. I allowed Jordan to return back to the grandparents’ home and stay for a week or more after the death of Sandra to finish out the rest of her school year and to be with the grandparents some because all had been recently bereaved by Sandra's death. (They didn't send her to school at all)
The attorney for the grandparents reminded the judge that he had forgotten to schedule me for mediation with the case no. 199709681 grandparents. The judge then told me that I would be scheduled for mediation. To add insult to injury, after the fact that he had already removed my child from my home he said that he was also sending an attorney and an investigator he had already chosen beforehand to inspect my home and interview my other children.
The Citation lists Sandra Lopez as the plaintiff, the attached instrument list Floyd Daniel Lopez and Irma Olga Jimenez as the petitioners that fact is not listed on the citation. At the time of Sandra Lopez's death on May 24, 2014 she did not have a pending suit for Modification of Parent-Child Relationship for them to intervene in. In actuality, Irma Olga Jimenez and Floyd Daniel Lopez never petitioned the court at all for Temporary Managing Conservatorship. their attorney and bogusly claimed that Sandra had sued and are using her child support case's cause No. 9709681 then they attached their alleged petition to it. I have exhibit's of all of this information and will provide it for the court.
Floyd Daniel Lopez and Irma Olga Jimenez had no legal standing to petition the court for temporary Managing Conservatorship yet the Associate Judge knowing allowed them to do so by alleging that they were intervening in a pending suit Sandra Lopez filed prior to her demise and then attaching their information onto it.
While they did not provide any proof or evidence to the court to support the allegations in the petition and affidavits they filed because there was none, the Associate Judge allowed Floyd Daniel Lopez, Irma Olga Jimenez and my own sons John Daniel Davis and Joseph Andre Davis II whom they had somehow persuaded or coerced to be their witnesses to take oaths to tell the truth to get on the witness stand and purger themselves with their character assassinations of me by making unsubstantiated allegations and obvious lies of child abuse and family violence against me.
This travesty did jeopardize my job and my chance for the promotion. I, too, am a public servant, false documentation of domestic abuse leading to the removal on August 13, 2014 of my child from my home was very harmful to me. the grandparents were awarded joint managing conservator ship base upon those false allegations of abuse. the 245th district court determined I had a history of family violence and removed my child from my home for a month and a half and she returned back to me on October 16,2014 when if was informed that case no. 199709681 was dismissed. JAD was already adjusted into her life in her new household. JAD and I were always close, but during the time she was living with me our bond grew closer. .
Floyd Lopez stated in the Associate Judge's court how much he dislikes me and has proven to be bitter and vindictive because I never married his daughter.
I already knew how much he vehemently disliked me because he has spent almost all of his spare time in an effort to turn my children against me and to stir up as much conflict as he possible can between us.
Their attorney did not share any information as to the charges he planned to claim against me until we were in the court room and the false allegations begun.
I have no history of family violence or violence of any kind against anyone. I have no police record for any type of violence. Floyd Lopez or someone in the Lopez family has already filed a report of child abuse against me once in 2006 which was determined to be false and unfounded by the investigator and the case was closed.
A New suit which was alleged to have been filed on October 7, 2014, the
Notice of Hearing for Temporary Orders was signed by Judge Moore's Associate Judge Cooper on October 8, 2014. Petitioner's sworn affidavits are dated October 4, 2014 was scheduled a hearing date of October 16, 2014 9:00 A.M. on the same date and time Judge Moore had reset Petitioner's de novo hearing to be heard. There was not a notice of a non- suit dismissal of the previous case served with the citation accompanying the new suit filed. No where on the docket for that time and date shows the Petitioners as having a temporary orders hearing scheduled on that date.
I was served a citation with the Petitioner's NOTICE OF HEARING.
Texas Rules of Civil Procedures Rule 162 Dismissal or Non-Suit "At any time before the Plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case or take a non- suit. However, once a judge announces a decision that adjudicates a claim. That claim is no longer subject to the plaintiffs right to non-suit. The Plaintiffs, Floyd Daniel Lopez and Irma Olga Jimenez petition Cause No. 9709681 had already been fully tried and decided. According to the rule of law that case cannot be non-suited and dismissed without prejudice.
Texas Family Code 107.021 Discretionary Appointments, (a-1) (b) "In determining to make an
appointment under this section, the court (1) shall (A) give consideration to the ability of the parties
to pay reasonable fees to the appointee; and balance (B) the child's interest against the cost to the
parties that would result from an appointment by taking into consideration the cost of available
alternatives for making an appointment. (2) may make an appointment only if the court finds that the
appointment is necessary to ensure the determination of the best interest of the child unless the
appointment is otherwise required by this code. Section 107.022 "
I Objected because I cannot afford to pay attorney's fees for an amicus
attorney/guardian ad litem especially one where there is no proof that her services are even needed
or required. No hearing has been held in support of the allegation that she is required but the trial
court abused its discretion and appointed only because Plaintiffs attorney requested one because it
would be in the "Best Interest" of the Plaintiffs Floyd D. Lopez and Irma O. Jimenez.
See TEX. FAM.CODE. ANN. § 102.003(a)(9); In re M.J.G., 248 S.W.3d at 757‐59; see also Troxel, 530 U.S. at 68‐69, 120 S.Ct. 2054 (presumption that fit parents act in the best interest of their children); see generally In re Pensom, 126 S.W.3d at 255 (considering limitations of intrusion into the parent‐child relationship in the “These parental interests are a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
This matter was mediated by the HA RRIS COUNTY DOMESTIC RELATIONS OFFICE, ALTERNATIVE DISPUTE RESOLUTION DIVISION on November 25,2014, by mediator Kathleen A. Gasner. The parties intend this agreement to be for final orders and this agreement resolves all temporary issues. This is the actual agreement signed by myself and grandparents.
My Prayer is that all relief prayed for by Petitioners, Floyd Daniel Lopez and Irma Olga Jimenez be denied and that I, Joseph Andre Davis, be granted all relief requested.
Respondent prays for attorney's fees, expenses and costs as requested above.
Respondent prays for general relief.
I certify that I have this day served copies of this petition on the respondent judge and all other parties to the action in the trial court.
JOSEPH ANDRE DAVIS
3323 Rose Trace Drive
Spring, Texas 77386
TEL: 832-660-7207
By:___joseph andre Davis_________________________________
JOSEPH ANDRE DAVIS, PRO SE jdavis1103@hotmail.com .
APPENDIX G
FIRST CLAS$l
LOPEl. FLOYD DANIEL
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RETURN SERVICE [us
PRESORTED I
BE ADVISED ON 12/19/2014 THE * REQUESTED I POSTAGE PAiD QIM
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F'O~~t~Cit~}l~~~fi~f..1C7~I\}IT'-'f CJC'(;~)F:f-<f::.r), ,~~ ORDER APPOINTING CONSERVATOR * *JOSEPH ANDRE DAVIS *3323 ROSE TRACE DRIVE
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No Grandparents
113120142:17:18 PM
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Chr1s Daniel - District Clerk Harris County Envelope No. 128956 By: TIffany DeIa Rosa
Joint Managing Conservator NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA NCPName: JOSEPH ANDREW DAVIS CP Name: SANDRA. LOPEZ OAG Number: On07SS141 LAC: RPMM
CAUSE NUMBER 9709681 _~
IN TIlE INTEREST OF § IN THE 145TH JUD~ISTRJCT JOSEPH ANDRE DAY18 n JORDANADAY18 ~ o~URTOF
CHILDREN § HARRISCO~. TEXAS
CUll'» SUPPORT REVIEW ~~ (Confumation of Arrears and M~~tion)
On the 2U" day of December, 2013, a negotiation conferen~~s held pursUlDt to Texas Family Code Chapter ~0(Q(-
233.
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The OFFICE OF TIlE ATTORNEY GENERAL a~by a duly authorized representative. SANDRA.LOPEZ, mother of the children, here~rred to as Obligee, r.y- appeared in person (and~; ~ ~. [V' agreed to the entry ofthesc orders as ~Clenced by her signature; JOSEPH ANDREW DAYIS,/alher Of~~ hereinafter referred to as Obligor, W appeared in person (and ~ Lr" agreed to the entry of the~ as evidenced by his signature; The following agreements andIAdings are the result of tile negotiation conference. It is FOUND that the Cor~~sdictioD of the parties and the subject matter of this suit, and that the following orders are in the be~ of the children. .
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RECORDER'S ~ '"y "This instlument IS 01~ qua at the time c1lmagll'9
CBILD StJPPORT RIVIIWOIDII (CONnIMAnm OJ AauAIs.vm MODIFICATlOI'f)
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CHILDREN
The following children are the subject of this child support review order:
Sez DOS SSN Blrtllplace
JOSEPH ANDRE DAVIS II M 1013011995 637-50-xxxx CONROE, TX JORDAN A DAVIS F 7/26/2002 638-82-xxxx HOU~ HARRIS, TX
PRIOR ORDER ~~ On 312812007 the Court ordered JOSEPH ANDREW DAYIS to pay current cbil~ of S465. 00 molllhly, beginning 51112007 and monthly thereafter. . 0
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JUDGMENT ON ARREARS 0 ~
It is FOUND and CONFlRMED that JOSEPH ANDREW DA YIS is ~ in the amount of $0.00 as of November, 3U", 2013. This includes all unpaid child support and any ~ owed on previously confirmed child!
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support arrearages or retroactive support judgments as of the specified ~ Tbe judgment for this amount is a cumulative judgment. ''"'{@ Ajudgment is granted against JOSEPH ANDREW DAo~~ in favor of the OFFICE OF THE ATIORNEY GENERAL in the amount of 10.00, with interest as provided ~e law of: the State of Texas, at the rate of 6% per annum; for collection and distribution according to Jaw. (Y NOTI~TO OBUGOR
Any judgment(s) rendered herein is not an~lmem debt and the entire judgment is now due and owing. The OFFICE OF THE ATTORNEY GENERAL ~e whatever enforcement remedies deemed necessary including any
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remedies required by federal or state laws ~ this judgment. even if regular periodic payments on this judgllllcot are being made. ~ JOSEPH ANDREW DA YIS on notice that shOuld he fail to pay current ~hi1dand medical support, or toward the arrearage as ordered ~ the OFFICE OF THE ATTORNEY GENERAL may pursue an action to suspend any or all licenses he may bave~ Pursuant to T~~ Code § IS7.269, the Court retains jurisdiction over this matter until all current support and all support arreara ~IUding interest and any applicable fees and costs, have been paid.
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MOOMCATION OF SUPPORT ORDER It is FOUND that since rendition of the support and health care coverage order entitled AGREED ORDER IN SUIT FOR MODIFICATION OF CHILD SUPPORT OBUGATION signed on 312812007 there has been a material and substantial change in the circumstances of the children or parties, or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by~er 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines, or ~xisting order for child support does not include health coverage for the child u required under TFC § 154.182, ~ warrants the following modification of the existing support order. (~ FINDINGS REGARDING MEDICAL SUPPORT AND CHILD Qtrt.~ ~ "RT OBUGATIONS ,,0
It is FOUND: ~ JOSEPH ANDREW DAVIS's gross monthly resources ~i;l66.46 . Reasonable cost, based upon 9% of JOSEPH ANDREw;, f. 's gross monthly resources is S3 74.98. JOSEPH ANDREW DA VIS is obligated to provide sup or the following:
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(A) The number of children before the court' - -. (B) The number of minor children not befo~~ court residing in the same household with JOSEPH ANDREW DAVIS is - 2 -'e"~2 (e) The number of children not bef~ urt for whom JOSEPH ANDREW DA Y1S is obligated by ~~urt order to provide m~~ rt, and who are not counted under Paragraph (A) or (B) is
(0) The number of children not ~ the court for whom JOSEPH ANDREW DA YIS is obligated by 8 court order to provide.~ support, including 1hose counted in (C) above, and who are not counted under Para~~) or (B) is -1 -.
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SANDRA. LOPEZ pmvide~ insurance coverage for - 0 - other minor children.
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CHILD SmoIT RlVIIW ODu (COImIMATION OJ AUlAJlSAND MODlDCAlIOI'I)
MEDICAL SUPPORT
(MORE THAN ONE OmON MAY BE APPROPRIATE) o 1. Health insurance is available or is in effect for the cbildren through the following parent's employment or membership in a union, vade association, or other organization at a reasonabJe(cost to JOSEPH ANDREW DAYIS: . r-~
o SANDRA. LOPEZ at an actual cost oU per month. ~@
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JOSEPH ANDREW DAYIS at an actual cost of $ ~onth.
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X 2. Health insurance is not available under option # 1, or good cause·/ vary nom # 1. and bealth insurance is avaUable to the following parent from anotber so~ ~ reasonable cost to JOSEPH ANDREW DAYIS: 0 0 o SANDRA. LOPEZ at an aetual cost ofs ~month. X JOSEPH ANDREW DAYIS at an actual cost of $14o.~"%nth.
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o 3. No parent bas access to private heahh insurance at a ~able cost or good cause exists to vary from #1 mR m 0~
o 4. Notwithstanding the findings made above, it i~UN:othat good cause exists to deviate from the statutory priorities in ordering health •.,••~~ ~or the following reasoD(s):
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It is tiJrtber FOUND dial tile fo7.~.g t(~
healtb -
SUPPORT FINDINGS
are ill tile best ••••••• ortlle children.
It is FOUND: ~ (1) the net resources O~H ANDREW DAYIS per month are $3,21J.12; (2) the percentage ~d to JOSEPH ANDREW DAYIS's net resources for child support is 19%.
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CIIILD S1JPI'OIlT REvIIW 0Jm1R (CONFllMATION OF Aau.uIs MD MoDifICATION)
HEALTH INSURANCE TO BE PROVIDED BY OBLIGOR JQSEPHANDREWDAYIS
As additional child support, JOSEPH ANDREW DA YlS is ORDERED to obtain, within 1S days after entIy of this order, health insurance for each child subject of this suit that covers basic health care services, including usual pbysician services, office visits, hospitalization. laboratory, x-ray, and cmcrgcncy services through: ~
__ JOSEPH ANDREW DAYIS's employmentor membership in a union, ~i~ -s or other
organization. ,~ <> ~I
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JOSEPH ANDREW DAYIS is ORDERED to maintain such health ~ce in full force and effect for any child, subject of this suit, until the first of the following events occurs for the ~~ 1. the child reaches the age of eighteen years or graduates from ~- hiOJl,~boo~whichever occurs later, subject to the provisions for support beyond the age of eighteen years . \ low;
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2. the child marries; ?~ <>~
3. the child dies; ~ 4. the child enlists in the armed farces of the U~~S and begins active service as defined by section 101 of title 10 of the United States Code; or ~ s. the child's disabilities are otherwise remo~ for general purposes.
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If the child is eighteen years of a~ not graduated from high school, IT IS ORDERED that this obligation shaUnot terminate but shan continue f~ ~ as the child is enrolled
1. under chapter 2S of the T4cation Code in an accredited secondary school in a program leading toward a high school diploma ~ section 130.008of the Education Code in courses for joint high school and junior college credit and i~~1ying with the minimum attendance requirements of subchapter C of chapter 2S of the Education Code~ 2. on a full~~S in a private secondary school in a program leading toward a high school diploma and is comply~ the minimum attendance requirements imposed by that school.
JOSEPH ANDREW DAYIS is ORDERED to convert any group insurance to individual coverage for each child within IS days of termination of his employment or other disqualification of him from the group insurance. JOSEPH ANDREW DAYIS is ORDERED to exercise any conversion options in such a manner that the resulting insurance equals or exceeds that immediately before the conversion.
JOSEPH ANDREW'DA YJS is ORDERED to furnish SANDRA LOPEZ and the Office oftbe Attorney General Child Support Division a IrUe and correct copy of the health insuranQCpolicy or certification and a schedule of benefits within 30 days of the signing of this order. JOSEPH ANDREW DAVIS is ORDERED to furnish SANDRA LOPEZ the in8Ul'll1Cecards and any other fonns DeceSSll')' for use of the insurance within 30 days of the signing of this order.
JOSEPH ANDREW DA JlIS is ORDERED to provide, within three days of receipt by ~to SANDRA WPEZ any insurance checks, other payments, or explanations of benefits relating ~ any medical~~S for the children that SANDRA LOPEZ paid or incurred. rt:J Pursuant to Texas Insurance Code §1504.051, it is ORDERED that if Joii!fHo'~ ANDREW DAVlS is eligible for dependant health coverage, but fails to apply to obtain COVc:rBge for the chil~ insurer shall enroll the children on application of SANDRA LOPEZ or others as authorized by law. ~ 'V
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In accordance with Texas Insurance Code .§§1204251, 120~~and 1504.055(a), it is ORDERED that SANDRA WPEZ, at her option, or others as authorized by law,. claims for health-care expenses directly with the insunmce carrier, and receive payments from the insurer, wif!1~~ whom coverage is provided for the benefit of the children. Further, for the sole purpose of§§ 1204.251 an~~S2 of the Texas Insurance Code, the party who is not carrying the health insurance policy is designated the ~Dg conservator or possessory conservator of the children.
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CIIJLD SllPPOBT IUVmW ORDIil (COIUllMAnOl'l or ARIIIAIS AND MODJFlCATlOl'f)
ADDmONALBEALTB CARE EXPENSES Pursuant to Texas Family Code §154.183(c), additional healthcare expenses to be allocated between the parties include the following:
(1) any reasonable and necessary health care expenses of the children, including vision and dental expenses, that are not reimbursed by insurance; and (2) any amounts paid by either party as deductibles or copayments for health care -...•• ~s for the children. F~~:
Additional health care expenses of the children are allocated as follows: ~ Q , o:if SANDRA. LOPEZ is ORDERED to pay ~% and JOSEPH ANDREW IJfi1S is ORDERED to pay ...iQ...% of all additional health care expenses if. at the time the expenses are incurred, the ~ to provide health insurance for the children is providing health insurance as ordered. ;:::;'" -- --- --
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The party who incurs a health care expense on behalf of~e. is ORDERED to submit to tho non-incurring I()
party(ies) all forms. receipts. bills, and statements reflecting the ---- care expenses within 30 days after he or she receives them. The party shall itemize those expenses for wh~yment or reimbursement is sought Each non- incurring party who is also a parent is ORDERED to pay ~ ber share or percentage of the health care expenses either by paying the health care provider directly or by reim~iJlg the incurring party within 30 days after the non-incurring party receives the f~s. receipts. bills. or statem~)
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(~ WARNING .
A parent ordered to pJ"OYide1I~~urance, or to pay addltloaaJ child support for tile cost ofllealtb hllaraDce who lalla to do 10 Is liable ~OO% of aecasary medical e:lpeDHI of tile cbUdrea, wltbout reprd CO wbetller tbe espe.la woald have ~ paid If llea1tb iIIIunace ••ad beea pl'O¥ided, aad tile cost of healtll p~
ialunace premiuml or coatri~al, If _ay, paid oa belaalf of1lle chndreD.
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CBILD SVPf01lT REVIEW OIlDD (CoNJIIJlM.\TION or AlIuAJIs AND MODJIIICATJON)
CURRENT CIIll.J) SUPPORT
JOSEPH ANDREW DAVIS is ORDERED to pay SANDRA. LOPEZ CUlTCIlt child support of $610.00 each month beginning the F day of JfllllIIUJ'. lOU, payable on or before that date and on or before the same day of each month thereafter until the fast month fOllowingthe date of the earliest occurrence of one of the events specified below:
I. any child reaches the age of eighteen years or graduates &omhigh school, wbich~ occurs later, subject to the provisions fOrsupport beyond the age of eighteen years set out below; ~ 2. any child marries; @ 3. any child dies; ((~ 4. any child enlists in the armed forces of tile United States and begins activ~Uce as defmed by sections 101 oftitlc 10 of the United States Code; or '0f ¢
5. any child's disabilities are otherwise removed for general purposes.. ~
Thereafter, JOSEPH ANDREW DAVIS is ORDERED to pay SANDRA. LOP~d support of U1S.00 each month beginning the same day of the first month following the last month in wh~port was payable according to the
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preceding paragraph, payable on or before that date and on or bef;t:ore e day of each month thereafter until the next occurrence of one of the events specified above for the other/anoth· ld.
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If a child is eighteen years of age and has not grad~m higbschool, IT IS ORDERED that the obligation to pay child support for that child shall not terminate but ~ntinue for as long as the child is enrolled: 1. under chapter 25 of the Texas Education ~ ~ accredited secondary school in a program leading toward a high school diploma or under section 130.00~fthe Education Code in courses for joint high school andjunior college credit and is complying with tll~immn attendance requirements of subcbaptm' C of chapter 2S of tile ,.(~~
Education Code, or .~ '0
2. on a fuIl·time basis in a private_~dary school in a program leading toward a high school diploma and is complying with the minim*daoce requirements imposed by that school.
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,~CJto CREDIT FOR INFORMAL PAYMENTS JOSEPH ANDREW:MFIS is ORDERED to pay all child support througb the regisby prescribed in this decree, and any direct paymen~ or aD)'expenditures incurred during his periods of possession shall be deemed in addition to and not in lieu ofth~dd support ordered herein.
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CIIILD SUPrOIlT RlVlIW 0RDn (CoNfJllM.\ nON OF ADI.ARS AND MODIFICATION)
PAYMENT OF SUPPORT AND COSTS JOSEPH ANDREW D.A.VIS is ORDERED to pay all support through the registry of the court;
Texas Child Support Disbursement Unit POBox 659791 San Antonio, TX 78265-9791 fur dislribulion according to law. AU __ shan be ideDIifiod by: if!
Obligor name JOSEPH ANDREW D.A.VIS, (FU~ ,
Obligee name SANDR.4 LOPEZ, OFFICE OF THE ATTORNEY GENERAL case number 0220755141. cause number 9709681. and ~ ,&~
the date on which the withholding occurred. " ..J/jf JQSEP H .ANDREW DAVIS is ORDERED to pay court costs of A.r 1l!i!!J to the District Clerk of H.4RRJS County, Texas on or before the 31'" day of Mq. 2014directly to: ~ "fy;
CHRIS DANIEL '!!/!j POBOX46S1 ~ HOUSTON, TX 77210-4651 <J . INCOME ~LDING Pursuant to Texas Family Code Chapter 158, any ~yer of JOSEPH ANDREW DAYIS, current or subsequent, is ORDERED to withhold income from the disposabl~ Wss of JOSEPH ANDREW DA VIS for the children's support I
as set out in the ORDERINOTICE TO WlTHHOLD~OME FOR CHILD SUPPORT. Any income withheld from JOSEPH ANDREW DAVISs disposable ~~child support and paid according to this order shan be credited against his child support obligation, but sha~ischarge any of his child support obligation that exceeds the amount so credited. O· It is FOUND JOSEPH AND~!.4 VIS is liable for all court ordered child support. regardless of the amounts withheld by any employer or enti~@ o OSEPH .ANDREW D.A.J'lS is ORDERED to pay any court ordered child support not withheld by any employer~ Yty directly to the Texas Child Support Disbursement Unit as ordered.
The Clerk of the ~ORDERED. upon request, to cause a a:lrtified copy of the ORDERINOTICE TO WITInlOLD INCO~~HlLD SUPPORT, with a copy of Texas Family Code Chapter 158 attached, to be delivered to JOSEPH ~'kw D.A.vts« employer.
JOSEPH~W DAYIS is ORDERED to provide lIllY subsequent employer with a copy of the ORDERINOTICE TO WITHHOLD INCOME FOR CHILD SUPPORT.
STATUTORY WARNINGS
FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FlJR11IER LITIGATION TO ENJI'ORCE TIll. ORDER,
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INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $SOO FOR ~ VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FDS Clt..'tOSTS.
FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO . PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY ~ RECEIVING CREDIT FOR MAKING THE PAYMENT. _~ FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT.ru,~ DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. RE~ BY A PARTY TO ALLOW
ClULD SUPPORT TO THAT PARTY.
EACH PERSON WHO IS A PARTY TO THIS ORDER PARTY, THE COURT, AND THE STATE CASE REGISTRY ~Fo RESIDENCE ADDRESS, MAILlNG ADDRESS, HOME TELEP liD~
POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY F~ ~""-
TO PAY COURT-ORDERED
TO NOTIFY EACH OTHER
CHANGE IN THE PARTY'S CURRENT NUMBER, NAME OF EMPLOYER, oADDRESS OF EMPLOYMENT, DRIVER'S LlCENSE~~ AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INT " GE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THEi1£O TIm STATE CASE REGISTRY ON OR BEFORE THE 60m DAY BEFORE THE INTENDED GE. IlI'mE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE CIENT TIME TO PROVIDE 6O-DAYNOTICE, THE PARTY IS ORDERED TO GIVE NOTICE 0 I CHANGE ON OR BEFORE THE Furru DAY AFTER THE DATE THAT THE PARTY KNO~OfTHE CHANGE.
THE DUTY TO FURNISH THIS INPO~TION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY COZNTo LONG AS ANY PERSON,BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY . PORT OR ENTITLED TO POSSESSION OF OR ACCESS TOAcmLD. 0 0
FAILURE BY A PARTY TO ~~ THE ORDER OF mIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT AND, TIll.: S~ n~ CASE REGISTRY WITH CHANGE IN THE REQUIRED INFORMATION MAY RESULT LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A G OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, fj / OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATT 'S FEES AND COURT COSTS.
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NOTICE TO THE SJ'AB CASE REGISTRY As is required by the preceding section, any change of a party's residential address, mailing address, home telephone number, name of employer, address of employment, driver's license number, and w~teIePhOne number are to be reported by mail to the: ?i)~
State Case Registry (j ~)
Contract Services Section '>':t ~ MC046S ,tJf P.O. Box 12017 ~ Austin, TX 78711-2017 0 ~
in addition to reporting the change(s) to the other parties and the Court. «::Sf REVIEW 0 ~
Pursuant to 42 USC 666(a)(10). a parent subject to a child ~~ order, at least every three years, bas the right to request a review of the ordered child support amounts by con~""'Jthe CHILD SUPPORT DIVISION of the OFFICE OF THE ATTORNEY GENERAL. 0 ~.
AGREEDORDt~UIREMENTS
For all parties agreeing to this order, an APPR~ 'OF CHILD SUPPORT REVIEW ORDER and WAIVER OF SERVICE AND HEARING is included in this ~
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CIIIW SUPPORT RIVIIW ORDBa (CororDIMAllON or AaB&\ISAJID MODIPlCATION)
INFORMATION PURSUANT TO TEXAS FAMILY CODE 1105..006 Court: U5TH JUDICIAL DlSTRlCT HARRIS County, Texas Cause Number: 9709681 PRIMARY JOINT MANAGING or MANAGING CONSERVATOR I OBLIGEE INFORMATION:
Name: SANDRA LOPEZ Residence Address:
Mailing Address (if different):
23918 SPRING TOWNE DR SPRING TX77J73-6J62-18
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Social Security Number: 637-05-JCXX% ~ Driver License Number: 14768ux ~ Home Phone: oq ~
Employer: SPRING ISD o~
Employment Address: 16717 ELLA. BLVD ~ HOUSTON TX 77090-4213-J7 ~ Work Phone: o{f!f» .
JOINT MANAGING or POSSESSORY CONSERV ~ I OBLIGOR INFORMATION:
Name: JOSEPH.ANDREWDAJIJS <Q Residence Address: 3323 ROSE TRACE DR °~ SPRING TX77386-4~2.~
Mailing Address (if different): (( ~ ~ ~ Social Security Number: 456-37-xxxx ~~ Driver License Number: 05233:ux Ql Home Phone: /@ Employer: HOUSTON~ OF Employment Address: 901 BAdfiJr HOUSNN TX 77002-2526-01
WorkPhonc: ~ Expected tennination date of obl~ to pay child support and of orders for possession of, or access to, a child (date of expected emancipation of all ~~;
The Court: .0{JjJ ~not ~ ordered that special ~ctions be placed on the distribution of this information pursuant to Texas Family Code § lOS.OO6(c),to ~~-
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CARLA D GROVER Child Support Review Officer CHILD SUPPORT DMSION
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CALDWELL - SBN: 22050800 " 0 ROBERT D. HALL· SBN: 24057882 ~
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~~~.~A~g~~W: YOLANDA MARTIN RANDOLPH· SBN: 1312
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ATIORNEY OF RECORD ) ClllLD SUPPORT DMSION @ CIDLD SUPPORT - 0608E " {» 450 N SAM HOUSTON STE 190 ~ HQUSTON, TX 77060 (('1, Telephone No. (800)252-8014 ~~ V Toll Free 1(800)252-8014 ~ FAX No. (281)445-3301 M Q' ~;:>
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CIULD SURORT RIVIIWOIDO (C0IVIDIA11Ol'I 01' AUlAIS~ MoDIFICAT1ON)
VIII. CONSTITUTIONAL RIGHTS OF PARTIES TO CHILD CUSTODY LITIGATION A. Due process of law 1. The right to conceive and rear a child is a basic civil right, an essential constitutional right far more precious than property rights Stanley v. Illinois (1972) 405 U.S. 645 2. The state has no authority to dictate to parents the manner in which they should rear their children Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 132 Cal.Rptr.3d 897 (to overcome presumption that a fit parent will act in the best interest of grandchild, grandparent has burden of proof, and must show by clear and convincing evidence that denial of visitation would not be in the grandchild¶s best interest, i.e., would be detrimental to grandchild. Preponderance of evidence standard is not sufficient to adequately protect a fit sole surviving parent¶s federal due process right to raise a child) Clear and Convincing Proof
A standard applied by a jury or by a judge in a nonjury trial to measure the probability of the truthfulness of particular facts alleged during a civil lawsuit.
Clear and convincing proof means that the evidence presented by a party during the trial is more highly probable to be true than not and the jury or judge has a firm belief or conviction in it. A greater degree of believability must be met than the common standard of proof in civil actions, preponderance of the evidence, which requires that the facts more likely than not prove the issue for which they are asserted.
The standard of clear and convincing proof—also known as "clear and convincing evidence"; "clear, convincing, and satisfactory"; "clear, cognizant, and convincing"; and "clear, unequivocal, satisfactory, and convincing"—is applied only in particular cases, primarily those involving an equitable remedy,
The Constitutional Right to Be a Parent
The United States Supreme Court has stated: "There is a presumption that fit parents act in their children's best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason or compelling interest for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304. The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000)
Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." --Troxel v. Granville (530 U.S. 2000, or 120 S.Ct. 2054, or also, 147 L.Ed.2d 49)—
Cause No. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT
JOSEPH A. DAVIS AND JORDAN A. DAVIS HAR1tlSCOUNTY,TEXAS
CHILDREN 24Sth JUDICIAL DISTRICT
IATED SETTLEMENT AGREEMENT FOR TEMPORARY ORDERS
This matter was mediated by the H RRIS COUNTY DOMESTIC RELATIONS OFFICE, ALTERNATIVE
DISPUTE RESOLUTION DIVISI N on November 25,2014, by mediator Kathleen A. Gasner. The parties
intend this agreement to be for fin 1 orders and this agreement resolves all temporary issues.
The parties to this agreement are t e following:
FATHER: ~(~~~~~~~~~~U-L- ~ _
Email address: -----=--+J-=~~-'--'-"~~~~~~-="'--'-L-~~.:-.L--------
Email Address:~~;L1....lJ.-L..!.L4~;...I£..~!!!IU..~Y,P~~=--.:...I...uL-~ _
CHILDREN:
Name: Joseph Davis Date of Birth: October 3 , 1995
Name: Jordan A. Davis Date of Birth: July 26, 2 02
Cause No.
The parties have agreed to the follo mg:
POSSESSION
Possession shall be as agreed upon y the parties, and, in the absence of mutual agreement, shall be as follows:
Maternal grandparents shall pick u Jordan from the Father's residence at 7 a.m. on the first day of Father' s work week and take the child to sc 001 when school is in session. Father shall take the child to the maternal grandparents' residence at 5:30 a. . on the second da~ of his work week and the grandparents shall then take Jordan to school. Each work week alternates as follows: Monday and Wednesday; Tuesday and Thursday; Wednesday and Friday; Thursday nd Saturday and Friday and Sunday. On the date of this agreement, Father's work week is in the Monday and ednesday work week cycle. Further, on the work week wherein the maternal grandparents take Jordan to school on Thursday, the grandparents shall have possession of the child at the time school recesses on Thursday and t ke Jordan to school on Friday and pick up the child from school when school recesses on that Friday and return ordan to the Father's residence at 6 p.m. on the Sunday immediately following.
Father shall forward his work wee calendar to Petitioner's attorney and the amicus attorney by December 1, 2014.
For Thanksgiving, 2014 the mate al grandparents shall have possession of Jordan beginning at 6 p.m. on November 27, 2014 and ending at p.m. on the Sunday, immediately following, November 30, 2014.
For Christmas 2014, the maternal randparents shall have Jordan beginning at 6 p.m. on December 25,2014 and ending at 6 p.m. on December 28, 014.
For Thanksgiving and Christmas, he maternal grandJarents shall pick up and return the child to the Father's residence.
The possession schedule outlined bove shall be in effect for the 2014-2015 school calendar year.
I
OTHER AGREEMENTS
The maternal grandparents may tr nsport Jordan to her softball practices and games as long as Jordan has passing grades and passes STAR . If Jordan is not passing then she cannot participate in softball.
Father shall contact Dr. Sam J. B ser on or before De1cember6, 2014 and follow any and all recommendations made by Dr. Beser. The Father an maternal grandparents shall cooperate with the therapist by attending any appointments and following the t erapist's recommendations.
I
Petitioners' attorney shall draft th Temporary Orders. Petitioner's attorney shall pass the Temporary Orders hearing set for December 3,2014
Petitioner's attorney shall send th ~proposed Order td Father via email. If Father does not approve sam~('-~"
" I
Petitioner's attorney shall notify ather of the entry date. / \\L/ \
NO. 2014-58410
IN THE INTEREST OF IN THE DISTRICT COURT
J.A.D. AND J.A.D.II 245TH DISTRICT
CHILDREN HARRIS COUNTY, TEXA S
RESPONDENT'S ORIGINAL ANSWER AND MOTION TO DENY RELIEF IN ORIGINAL PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP
Now comes JOSEPH ANDRE DAVIS, Respondent, who files this original answer and motion to
deny relief in Petitioners' ORIGINAL PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP. The
last three numbers of respondent's driver's license number are 056 . The last three numbers of
Respondent's Social Security number are 397.
I. Parties JOSEPH ANDRE DAVIS, Respondent, is the biological father of the child the subject of this
suit, and Joint Managing Conservator. The biological mother of the child, SANDRA LOPEZ is now
deceased.
Petitioners FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ, are the maternal grandparents
of the child.
J. A. D. is a minor child who was 12 years old at the time the suit was filed.
J.A.D. II has reached the age of majority, but has not graduated from high school.
2. Denial of allegations
Respondent denies Petitioners' allegations in the petition to modify parent-child relationship.
3. Motion to Deny Relief
a. Respondent is the biological father of the children the subjects of this suit, and a
Joint Managing Conservator. The biological mother of the children, SANDRA LOPEZ, is now deceased.
This ORIGINAL PETITION IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP was brought by
Petitioners FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ as a request to be appointed Custodial
Joint Managing Conservators of Respondent's minor child J. A. D. having the exclusive right to
designate the primary residence of the child. J.A.D. II has reached the age of majority, he has a room
in and has been given a key to Respondent's home. He has been asked and made welcome to live
there, also.
b. Neither the petition nor any attachments provide the court with adequate or
any facts to support (a) an allegation that if the child J. A. D. was in the sole custody of her father it
would endanger her physical health or significantly impair her emotional development, (b) the
allegation that appointing the Petitioners as Custodial Joint Managing Conservators is in the best
interest of the child; or (c ) the allegation that the Petitioners have standing to bring this suit.
c. Joseph Andre Davis, Respondent requests that the Court deny Petitioners request
to change the designation of the person having the exclusive right to designate the primary residence
of the child sought in the ORIGINAL PETITION IN SUIT AFFECTING THE PARENT CHILD RELATIONSHIP,
and refuse to schedule a hearing on that issue.
II. Request for Temporary Restraining Order
Joseph Andre Davis, requests that the Court deny Petitioners' request for Emergency
Temporary Restraining Order issued against Respondent. Neither the petition nor any attachments
provide the court with adequate or any facts at all that support the requirements for the issuance of a
temporary restraining order or any restraining order at all Under Title 4. PROTECTIVE ORDERS AND
FAMILY VIOLENCE; SUBTITLE B. PROTECTIVE ORDERS and TEXAS RULES OF CIVIL PROCEDURES, RULE
680.
Texas Rules of Civil Procedures, Rule 680, " No restraining order shal l be granted without
notice to the adverse party unless it clearly appears from specific facts or by the verified complaint
that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be
served and a hearing held thereon. Every temporary order issued without notice shall be endorsed
with the date of issuance, shall be filed forthwith in the clerk's office and entered of record; shall
define the injury and state why it is irreparable and why the order was granted without notice.
Texas Family Code Sec. 82.009. APPLICATION FOR TEMPORARY EX PARTE ORDER. (a) an application
that requests the issuance of a temporary ex parte order under Chapter 83 must:
(1) contains a detailed description of the facts and circumstances concerning
the alleged family violence and the need for the immediate protective order; and
(2) be signed by each applicant under an oath that the facts and
circumstances contained in the application are true to the best knowledge and belief
of each applicant.
Texas Family Code 83.001. REQUIREMENTS FOR TEMPORARY EX PARTE ORDER. (a) If the court finds
from the information contained in an application for a protective order that there is a clear and
present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing, may enter a temporary ex parte order for the
protection of the applicant or any other member of the family or household of the applicant.
Joseph Andre Davis, Respondent requests the court to deny Petitioners
request to appoint a parenting facilitator. Jurisdictional requirement of prerequisites of standing in
grandparent access context serves to ensure that the statutory scheme is narrowly tailored so that a
parent's personal affairs are not needlessly intruded upon or interrupted by the trauma of litigation
by any third party seeking access . The supreme Court explains in Troxel v. Granville " So long as a
parent adequately cares for his or her children (i.e., fit parents) there will normally be no reason for
the State to inject itself into the private realm of the family to further question the ability of that
parent to make the best decisions concerning the rearing of that parent's children. Petitioners' have
not provided any evidence at all that either J. A. D. or Respondent is in need of a parenting facilitator,
nor have Petitioners provided any evidence at all that proves Respondent, Joseph Andre Davis unfit
as a parent and in need of a parenting facilitator.
Joseph Andre Davis, Respondent, requests that the trial court dismiss the
Petitioners' ORIGINAL PETITION IN SUIT AFFECTING THE PARENT - CHILD RELATIONSHIP. Petitioners
do not acquire standing under Texas Family Code Sec. 102.003 (a) (9) "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. There is no evidence that during
the relevant period or before that the Respondent or the deceased parent, SANDRA LOPEZ ever
totally abdicated their parental responsibilities to the petitioners at any time at all.
(a) (11) "a person with whom the child and the child's guardian, managing conservator , or
parent have resided for at least six months ending not more than 90 days preceding the date of the
filing of the petition if the child's guardian, managing conservator or parent is deceased at the time of the filing of the petition." Legislative law states "presumably, a person residing with a parent and
child may care for the child over the course of time, yet that person would not have standing simply
by the care that would normally be exercised when residing in the same household with the parent
and child.
If the same degree of care and control and possession that would accompany living with the
parents were sufficient to establish standing under 102.003 (a) (9), the requirement that the parent be
deceased in section 102.003 (a) (11) would be without effect because standing would separately exist
under 102.003 (a) (9). We should not construe section 102.003 (a) (9) so broadly that section 102.003
(a) (11) is rendered meaningless."
Petitioners do not acquire standing under Texas Family Code Section 102.004 (a). In addition
to the general standing provided by section 102.003, a grandparent or another relative of the child
may file an original suit requesting managing conservatorship if there is satisfactory proof to the court
that: (1) the suit is necessary because the child's present circumstances would significantly impair the
child's physical health or emotional development; or (2) both parents, the surviving parent, or
custodian either filed the suit or consented to the suit. The Petitioners have not provided any proof at.
all, satisfactory or otherwise in support of their allegations that the child being in the sole custody of
her surviving parent had or would impair her physical health or emotional development nor does
Petitioners' suit have Respondent's consent nor had Petitioners obtained SANDRA LOPEZ'S consent
prior to her demise..
(b) "An original suit may not be filed by a grandparent or other person. However, the court
may grant a grandparent or other person deemed by the court to have had substantial past contact
with the child to intervene in a pending suit filed by a person authorized to do so under this
subchapter if there is satisfactory proof to the court that appointment of a parent as sole managing conservator would significantly impair the child's physical health or emotional development." As
Respondent has previously stated, the Petitioners have not provided any proof at all in support of this
allegation and also, there was no pending suit for the Petitioners to intervene in.
Joseph Andre Davis, Respondent, requests that the Court deny Petitioners ORIGINAL
PETITION IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP, and refuse to schedule a hearing on that
issue. Respondent requests that the Court deny Petitioners' request for a Temporary Restraining
Order and the hearing on temporary orders. Joseph Andre Davis, Respondent, request that the
discovery of this suit is in compliance with Texas Rules of Civil Procedure, Rule 190.3, Level 2, (b) (1).
JOSEPH ANDRE DAVIS requests attorney's fees, all expenses, and all costs attributed to both
petitions brought by Petitioners' FLOYD DANIEL LOPEZ and IRMA OLGA JIMENEZ . Respondent
JOSEPH ANDRE DAVIS prays the Court grant this motion.
Attorney's Fees, Expenses, Costs, and Interest
It was necessary for Respondent JOSEPH ANDRE DAVIS to secure the services of KAREN
TOUPARD ALEXANDER, a licensed attorney to prepare and defend the previous suit brought by
Petitioners both of which were filed frivolously or designed to harass Respondent, JOSEPH ANDRE
DAVIS.
If the parties are unable to reach an agreement on all issues, Petitioners FLOYD DANIEL LOPEZ
and IRMA OLGA JIMENEZ, should be ordered to pay reasonable attorney's fees, costs, expenses,
through trial and appeal be taxed as costs and be ordered paid directly to Respondent, who may
enforce the order in Respondent's own name as Attorney, Karen Toupard Alexander has already been
reimbursed for her services rendered. Respondent requests post judgment interest as allowed by law.
Prayer
Respondent JOSEPH ANDRE DAVIS, prays that all relief prayed for by Petitioners FLOYD
DANIEL LOPEZ and IRMA OLGA JIMENEZ be denied, and that Respondent be granted all relief
requested in this answer.
Respondent prays for attorney's fees, all expenses and all costs attributed to both suits brought by Petitioners as requested above.
Respondent prays for general relief.
JOSEPH ANDRE DAVIS 3323 ROSE TRACE DRIVE SPRING, TEXAS 77386 TEL: 832-660-7207
By:________________
JOSEPH ANDRE DAVIS, Pro Se firsttank1@gmail.com
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IN THE SUPREME COURT OF TEXAS Page 1 of 10
IN THE SUPREME COURT OF TEXAS ════════════
NO. 06-0669 ════════════
IN RE RICKY DERZAPF, RELATOR
════════════════════════════════════════════════════ ON PETITION FOR WRIT OF MANDAMUS ════════════════════════════════════════════════════
PER CURIAM
In 2005, the Legislature substantially amended the grandparent access statute, codified at Family
Code sections 153.432-34. The statute now includes a presumption that a parent acts in his child’s best
interest, and it permits biological or adoptive grandparents to obtain court-ordered access to a grandchild
only if they show that denial of access will “significantly impair the child’s physical health or emotional
well-being.” Id. § 153.433(2). We conclude that the trial court abused its discretion in awarding access
here because the step-grandfather is neither a biological nor an adoptive grandparent, and the
grandmother did not overcome the statutory presumption favoring the children’s father. We conditionally
grant mandamus relief.
I
Ricky and Jennifer Derzapf were married in the mid-1990s. They had two sons, B.G.D.,[1] age
15, and A.J.D., age 10, as well as one daughter, J.B.D., age 6. Jennifer died of leukemia on June 3, 2001.
During the summer months immediately following Jennifer’s death, Connie and Randy Johnson helped
Ricky care for the children. Connie is Jennifer’s mother and the children’s grandmother; Randy is
Connie’s husband and the children’s step-grandfather. During the first few months, Connie and Randy
were the children’s primary caregivers. This arrangement was necessitated by Ricky’s work schedule,
especially shortly after Jennifer’s death. Initially, Ricky and the Johnsons worked cooperatively on the
children’s behalf. On most nights, Ricky joined the Johnsons and his children for dinner at the Johnsons’
home.
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IN THE SUPREME COURT OF TEXAS Page 2 of 10
Once the school year began, however, Ricky attempted to reassert himself as the children’s
primary caregiver—especially for the two older boys. B.G.D. and A.J.D. began spending most nights at
home with Ricky. Tension between Ricky and the Johnsons increased during this time. The Johnsons
perceived Ricky as emotionally aloof and a negative influence on B.G.D. in particular; Ricky believed
that Connie was assuming the role of mother instead of grandmother, directly undermining his influence
and authority over the children.[2] Later, Ricky wanted to keep J.B.D. overnight and on weekends, but
the Johnsons preferred a more gradual transition.
On May 6, 2003, Connie and Randy filed an original suit affecting the parent-child relationship
(SAPCR) seeking custody of the children and requesting that they be appointed sole managing
conservators. The Johnsons alleged that Ricky endangered the children and significantly impaired their
physical health and emotional development, and they obtained an ex parte temporary restraining order
preventing Ricky from obtaining possession of the children. After a hearing, the trial court dissolved the
temporary restraining order and returned the children to their father’s conservatorship. The trial court
noted in its May 22, 2003 letter ruling:
The evidence at the temporary orders hearing was not “satisfactory proof” that the father’s home raises a serious question concerning the children’s physical health and welfare.
The main concern of the Johnsons focused on Ricky Derzapf’s “neglect” of the children, based on his allowing the children to spend so much time with their grandparents, and the services provided by Connie Johnson in taking the children to doctor and dentist visits, picking them up from school when sick, etc. I do not see this arrangement as neglectful in any way. It appears that this was a mutually agreed upon arrangement following the death of the children’s mother which has been a benefit to everyone involved — the children, the father and the grandparents. There was no testimony that the Johnsons ever objected to providing these services, or that they asked Mr. Derzapf to take on more of the responsibilities. If they had done so, I believe he would have stepped up to the plate.
The trial court held that the Johnsons, as grandparents, "lack[ed] standing to be appointed as Sole
Managing Conservators or Joint Managing Conservators of the children under section 102.004(a)(1) of
the Texas Family Code” because there was no evidence that Ricky’s care of the children created “serious
question[s] concerning [their] physical health or welfare” as Family Code section 102.004(a) required.[3]
The trial court dismissed the case without prejudice on June 4, 2003.
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IN THE SUPREME COURT OF TEXAS Page 3 of 10
After the Johnsons filed the SAPCR, Ricky discontinued their access to the children. According to
Ricky, over the next twelve to eighteen months the children began to heal from their depression spurred
by their mother’s death and the ongoing tension between the Johnsons and him. Ricky took the children
to counseling, and they have since been released from the counselor’s care because of their progress in
coping with their depression, as evidenced by their social and academic success in school and by the fact
that B.G.D. and A.J.D. are no longer on antidepressant medications.
Connie and Randy filed a petition for grandparent access on March 10, 2004. The trial court
appointed Dr. Mark R. Otis, a psychologist, to evaluate Connie, Randy, the Johnsons’ sons,[4] Ricky, and
the children and to advise the court whether the Johnsons should have access. On October 14, 2005, the
trial court held an evidentiary hearing. Dr. Otis testified, and his report was admitted into evidence. The
twenty-four page report, prepared after interviewing all parties, concluded:
It is my opinion that the children will benefit from renewed contact with their mother’s family. While the children have certainly benefitted from being pulled away from Connie’s untoward communications, the children’s loss of relatedness to the entire Johnson family has added to the children’s feeling of loss following their mother’s death. I have specific concern, however, that Connie is at risk to dominate contact with the children and to project her experiences inappropriately on the children, thereby undermining both Ricky’s position and the ability of other Johnson family members to relate fully to the children. Additionally, Ricky and the Johnsons have highly polarized views of the situation and one another. Their conflict is now highly intractable and will not yield easily to change.
Dr. Otis recommended family therapy for Connie, Randy, and their sons, in which the primary focus
would involve family members “learning how to monitor, coach, restrain and help Connie: 1. block
inappropriate communications or questions to the children about their father or faith matters, 2. respect
interpersonal and family boundaries, and 3. be mindful to others’ relational needs rather than being so
focused on her own.” He recommended that the children have visitation with only Randy and the Uncles,
until such time as Connie’s therapist determined that she was ready to join family outings. Alternatively,
he recommended that the Johnsons and the Uncles have access to the children for one full day every two
months.
At the hearing, Dr. Otis testified that the children had formed attachments to the Johnsons, and it
would “not be healthy to cut them off.” He testified that B.G.D. and A.J.D. had a “lingering sadness”
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IN THE SUPREME COURT OF TEXAS Page 4 of 10
about their lack of contact with the grandparents, but that it was “not manifested as depression or
behavioral problems or acting out” and that it did not “rise to a level of significant emotional
impairment.”
On February 1, 2006, the trial court signed temporary orders granting the Johnsons and the Uncles
visitation[5] on Thanksgiving Day and the first Saturday of each month.[6] On July 7, 2006, the trial
court issued amended temporary orders stating that: (1) Connie and Randy had standing; (2) denying
access would significantly impair the children’s physical health or emotional well-being; (3) Connie and
Randy, but not the Uncles, were granted visitation with the children during part of Thanksgiving day and
on the first Saturday of each month and could attend the children’s extracurricular activities; and (4) the
Uncles could pick up and return the children during these visits.
Ricky sought mandamus relief. After granting his motion for temporary relief and staying the trial
court’s order, the court of appeals denied the mandamus petition in a per curiam memorandum opinion.
__ S.W.3d __. For the reasons expressed below, we conditionally grant mandamus relief and direct the
trial court to vacate its amended temporary orders of July 7, 2006.
II
Initially, we must determine whether Randy Johnson, the children’s step-grandfather, has standing
to pursue grandparent access.[7] “Possession of or access to a child by a grandparent is governed by the
standards established by Chapter 153.” TEX. FAM. CODE § 102.004(c). Ricky argues that chapter 153
applies only to “biological or adoptive grandparents,” and because Randy is neither, he lacks standing to
seek access. TEX. FAM. CODE § 153.432(a). The Johnsons disagree, citing three reasons Randy should
have standing to bring a suit for grandparent access. First, they argue that although subsection 153.432(a)
states that a “biological or adoptive grandparent” may file a suit for possession or access to their
grandchildren, subsection 153.432(b) refers only to “a grandparent” as opposed to a “biological or
adoptive grandparent,”[8] and thus even non-biological or adoptive grandparents may seek access under
subsection (b). Compare id. § 153.432(a), with id. § 153.432(b).
We disagree. Subsection (b) merely clarifies the circumstances in which a grandparent may
request the possession or access described in subsection (a); it does not redefine who may seek access.
“[C]ourts should not give an undefined statutory term a meaning out of harmony or inconsistent with
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IN THE SUPREME COURT OF TEXAS Page 5 of 10
other provisions, although it might be susceptible of such a construction if standing alone.” Texas
Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Because Randy is not a biological or an
adoptive grandparent, he lacks standing to seek grandparent access under section 153.432 of the Family
Code.
Second, the trial court concluded that Randy had “general” standing to file a suit for access to the
grandchildren under section 102.003(a)(9) of the Family Code.[9] Randy argues that his original suit was
filed on May 6, 2003, and it is undisputed that he and his wife had care, control, and possession for at
least six months ending not more than ninety days before they filed suit. That suit, however, was
dismissed, and Ricky argues that because the Johnsons did not file another petition until March 2004, that
date should govern for purposes of determining section 102.003(a)(9) standing.
Regardless of whether Randy satisfied section 102.003(a)(9)’s general standing requirements for
filing a SAPCR—an issue we do not reach—the trial court awarded access based on the standards set
forth in section 153.433, the grandparent access statute. As set forth above, Randy does not meet the
more specific standing requirements to pursue a claim under that section. Concluding that Randy had
standing under section 102.003(a)(9) when access was granted based on chapter 153 would permit an end
run around the requirements of section 153.432(a), a result the Legislature cannot have intended.[10] See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (noting “the traditional
statutory construction principle that the more specific statute controls over the more general”).
Finally, the Johnsons argue that Randy has a justiciable interest sufficient to confer standing,
based on In re C.T.H., 112 S.W.3d 262, 265-66 (Tex. App.–Beaumont 2003, no pet.). That case,
however, did not involve the grandparent access statute but was instead a child custody dispute between
the child’s parents, in which the father sought to modify a prior custody order. The maternal grandparents
intervened, alleging that they had had care, control, and possession of the child for at least six months,
and requesting that their daughter (the children’s mother) retain her role as “primary” joint managing
conservator, and alternatively, that they be named “primary” joint managing conservators. C.T.H., 112
S.W.3d at 265. Based on the pleadings and the evidence, the trial court concluded that the grandparents
had a justiciable interest in the controversy.
We face a different situation here. The grandparent access statute explicitly sets forth who may
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IN THE SUPREME COURT OF TEXAS Page 6 of 10
sue for access, and Randy did not meet those criteria. We cannot conclude that he has a justiciable
interest in the controversy sufficient to override the statutory text permitting only biological or adoptive
grandparents to seek access pursuant to the standards set forth in section 153.433. We conclude that the
trial court abused its discretion in concluding that Randy had standing and in ordering that he have access
to the children.
III
We now turn to whether the trial court abused its discretion in awarding Connie access pursuant
to section 153.433. The Legislature recently amended the grandparent access statute, effective September
1, 2005, changing the requisite standard for a grandparent to obtain court-ordered access to a grandchild.
Previously, the statute permitted grandparent access if it was in the “best interest of the child.” Act of
Apr. 6, 1995, 74th Leg., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005,
79th Leg., R.S., ch. 484, 2005 Tex. Gen. Laws 1345. As amended, section 153.433 now echoes the
United States Supreme Court’s plurality opinion in Troxel, 530 U.S. at 68, that a trial court must presume
that a fit parent acts in his or her child’s best interest. TEX. FAM. CODE § 153.433. As we recently
recognized, "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be
no reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper, 189
S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73 (noting
that the constitution “does not permit a State to infringe on the fundamental right of parents to make child
rearing decisions simply because a state judge believes a ‘better decision’ could be made”).
Section 153.433(2) requires that a grandparent seeking court-ordered access overcome the
presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the
evidence that “denial . . . of access to the child would significantly impair the child’s physical health or emotional well-being.” TEX. FAM. CODE § 153.433(2). A trial court abuses its discretion when it grants
access to a grandparent who has not met this standard because “‘[a] trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts[,]’ even when the law is unsettled.” In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)(first alteration in original) (footnotes
omitted).
To succeed on her claim then, Connie must overcome the statutory presumption that denying the
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IN THE SUPREME COURT OF TEXAS Page 7 of 10
children access to her in particular—not Connie and Randy jointly or the Johnson family as a
whole—would significantly impair the children’s physical health or emotional well-being. TEX. FAM.
CODE § 153.432(2). Connie argues that unlike Mays-Hooper, there is sufficient evidence to prove that
denying her access to her grandchildren would cause the grandchildren’s emotional well-being to suffer,
and she urges us to consider Dr. Otis’s testimony in support of her argument.
While it is true that Dr. Otis believed the children would benefit from renewed contact with the
Johnson family, he did not testify that denying Connie access to her grandchildren would significantly
impair the children’s physical or emotional health. Dr. Otis’s testimony pertained either to both Connie
and Randy or to the Johnson family as a whole, but his recommendations do not support renewed contact
with Connie alone. To the contrary, Dr. Otis noted that Ricky had a reasonable interest in preserving “the
children’s hard-won feelings of peace and security” regained after contact with Connie ceased.
Dr. Otis’s report concluded that the children should first have renewed contact with Randy, then
with the Uncles and extended family, and only later with Connie. Dr. Otis testified that his
recommendation “was based on the strength that I perceived that the grandfather, Randy has.” In fact, Dr.
Otis testified that he could not recommend visitation with Connie, absent supervision, as Connie’s
problems controlling her impulses could be “very influential” and detrimental to the children.
And while Dr. Otis testified that it may be harmful for Ricky to cut off the Johnsons’ access to
B.G.D. in particular and that it was in the children’s best interest that they have some contact with their
grandparents, his testimony does not support awarding Connie access over Ricky’s objection. According
to Dr. Otis, “[t]he manner in which she resisted the children transitioning to [Ricky’s] full-time care
interfered with the children’s emotional and behavioral adjustment.” He also concluded that Connie
actively attempted to alienate B.G.D. from his father and that her behavior was “very damaging” to the
parent-child relationship. Moreover, while Dr. Otis noted the children’s “sadness” at being unable to see
their grandparents, he admitted that these feelings did not rise to the level of a significant emotional
impairment.
The Legislature set a high threshold for a grandparent to overcome the presumption that a fit
parent acts in his children’s best interest: the grandparent must prove that denial of access would
“significantly impair” the children’s physical health or emotional well-being. TEX. FAM. CODE §
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153.433(2) (emphasis added). There has been no such showing here. A court may not lightly
interfere with child-rearing decisions made by Ricky—a fit parent by all accounts—simply because a
“better decision” may have been made. Troxel, 530 U.S. at 73.
IV
Finally, we must consider whether Ricky has an adequate appellate remedy. Determining whether
a party has an adequate remedy by appeal requires a “careful balanc[ing] of jurisprudential
considerations” that “implicate both public and private interests. . . . When the benefits [of mandamus
review] outweigh the detriments, appellate courts must consider whether the appellate remedy is
adequate.” In re Prudential, 148 S.W.3d at 136. We have noted:
Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.
Id.
We have previously granted mandamus relief to require a trial court to vacate its temporary orders
granting grandparent access. In re Mays-Hooper, 189 S.W.3d at 778. A grandparent’s rights are generally
subordinate to a parent’s. See TEX. FAM. CODE § 153.433(2); see also Troxel, 530 U.S. at 64-65
(plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can
create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality
stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’”
Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is
perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United
States].” Id.
The temporary orders here divest a fit parent of possession of his children, in violation of Troxel’s
cardinal principle and without overcoming the statutory presumption that the father is acting in his
children’s best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate.
In re Mays-Hooper, 189 S.W.3d at 778; see also Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993)
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IN THE SUPREME COURT OF TEXAS Page 9 of 10
(granting mandamus relief to vacate trial court’s temporary order granting visitation in suit to
establish paternity); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (holding that mandamus was an
appropriate remedy because “the trial court’s issuance of temporary orders [was] not subject to
interlocutory appeal”); accord In re Francis, 186 S.W.3d 534, 538 (Tex. 2006) (stating that a writ of
mandamus may be appropriate for reviewing a temporary injunction); In re Newton, 146 S.W.3d 648,
651-52 (Tex. 2004) (conditionally granting mandamus relief and noting that “a temporary restraining
order is generally not appealable”).
V
Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court
to vacate its July 7, 2006 amended temporary orders.[11] TEX. R. APP. P. 52.8. We are confident that
the trial court will promptly comply; our writ will issue only if it does not.
OPINION DELIVERED: March 23, 2007
[1]
Although B.G.D. is not Ricky’s biological son, Ricky adopted him.
[2]
As an example, he cites a letter Connie wrote to B.G.D., noting that once B.G.D. turned seventeen, he could “move out of [his] dad’s house [and] never go back . . . .”
[3]
Section 102.004(a) was amended, effective September 1, 2005. The version of the statute in effect when the trial court issued its June 4, 2003 order provided, in relevant part:
[A] grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1) the order requested is necessary because the child’s present environment presents a serious question concerning the child’s physical health or welfare
Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005, 74th Leg., R.S., ch. 489, 2005 Tex. Gen. Laws 1345.
[4]
The Johnsons’ three sons (collectively, the “Uncles”) were among those interviewed by Dr. Otis.
[5]
The Uncles were not parties to the suit.
[6]
On June 12, 2006, the trial court heard Ricky’s motion to dismiss. At the hearing, Ricky’s lawyer stated that Ricky would be inclined to grant some type of access to the children, but not court-ordered access and only access that could be
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directed and supervised by Ricky “under his rights as a parent to oversee the interaction with the grandparent.” The trial court has not ruled on the motion.
[7]
We note that standing was among the factors considered by the United States Supreme Court in concluding that Washington’s grandparent access statute was unconstitutional. See Troxel v. Granville, 530 U.S. 57, 67, 72 (2000) (plurality opinion)(noting the “breathtakingly broad” scope of the Washington statute at issue, which permitted “any person” to sue for access) (citation omitted).
[8]
Family Code section 153.432 provides:
(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
TEX. FAM. CODE § 153.432 (emphasis added).
[9]
Family Code section 102.003(a)(9) states, “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 § 102.003(a)(9).
[10]
This is not to say that grandparents may not seek conservatorship by satisfying chapter 102’s standing requirements. See, e.g., TEX. FAM. CODE § 102.003(a)(9) (authorizing suits by any “person, other than a foster parent” who has had actual care, control, and possession of the child for a designated period); id. § 102.004(a) (authorizing a grandparent to file an original suit seeking managing conservatorship under certain circumstances). Possession and access, however, are governed by chapter 153. Id. § 102.004(c).
[11]
Because the trial court abused its discretion in ordering access pursuant to section 153.433(2) of the Family Code, we do not reach Ricky’s constitutional concerns nor whether the trial court abused its discretion in granting the Johnsons possession of, as opposed to access to, the children.
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in Re Joseph Andre Davis (in Re Joseph Andre Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.