in the Interest of E.C., a Child

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00413-CV

IN THE INTEREST OF E.C., A CHILD

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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 322-529035-13

MEMORANDUM OPINION 1

Appellant S.H. 2 appeals the trial court’s denial of her motion to set aside

default judgment and her motion for new trial on the ground that appellees, B.F.

and W.F., lacked standing to file suit. Because appellees lacked standing under

1 See Tex. R. App. P. 47.4. 2 The names of the child and parties subject to this suit have been replaced with their initials in accordance with section 109.002(d) of the family code. Tex. Fam. Code Ann. § 109.002(d) (West 2014). chapter 102 of the family code, we reverse the trial court’s judgment and render

judgment dismissing appellees’ suit. 3

Background Facts

S.H., E.C.’s mother, was arrested in August 2012. Upon her arrest, S.H.’s

mother B.F. and B.F.’s husband W.F. took E.C. into their home. S.H. executed a

power of attorney allowing appellees to provide schooling, medical, and other

needs. About five and a half months later, in January 2013, appellees sued to

gain conservatorship of E.C. and to have the exclusive right to designate her

primary residence.

According to appellees’ attorney, he mailed S.H. the first amended petition

in the suit affecting the parent-child relationship, a waiver of citation, and a cover

letter requesting her signature on the waiver. S.H. executed the waiver of

citation and mailed it back to appellees’ attorney. Appellees served E.C.’s

alleged father R.S. by publication after they could not locate him. The trial court

appointed Mark Gosdin attorney ad litem for R.S., and after several searches,

Gosdin could not locate him either.

Following S.H.’s release, she moved in with appellees and obtained

employment. On August 12, 2013, B.F. appeared alone to prove up the order

appointing appellees and S.H. as joint managing conservators. The trial court

signed a final order on August 26, 2013 appointing appellees and S.H. joint

3 See Tex. Fam. Code Ann. §§ 102.003(a)(9), 102.004(a)(1)–(2) (West 2014).

2 managing conservators with appellees having the exclusive right to designate

E.C.’s residence.

On September 24, 2013, S.H. filed a motion to set aside default judgment

and a motion for new trial, arguing that she had not been served properly, that

her failure to appear was because of misinformation, and that appellees lacked

standing to bring the suit. In October 2013, the trial court denied S.H.’s motions,

holding that appellees had standing. S.H. then brought this appeal.

Standard of Review

Standing, which is a component of subject matter jurisdiction, is a

constitutional prerequisite to maintaining a suit under Texas law. See Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); In re M.J.G.,

248 S.W.3d 753, 762 (Tex. App.—Fort Worth 2008, no pet.). A party’s lack of

standing deprives the trial court of subject matter jurisdiction and renders any trial

court action void. In re Russell, 321 S.W.3d 846, 856 (Tex. App.—Fort Worth

2010, orig. proceeding [mand. denied]). Standing cannot be conferred by

consent or waiver and can be raised for the first time on appeal. See Mapco, Inc.

v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding); In re

Guardianship of Estate of Manire, No. 02-07-00181-CV, 2008 WL 467390, at *1

(Tex. App.—Fort Worth Feb. 21, 2008, no pet.) (mem. op.).

Whether a person has standing is a question of law that we review de

novo. See M.J.G., 248 S.W.3d at 758; In re Vogel, 261 S.W.3d 917, 920–21

(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). In addition, we review

3 the trial court’s interpretation of applicable statutes de novo. See Johnson v. City

of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989); Russell, 321 S.W.3d at 856.

When standing has been conferred by statute, the statute itself should

serve as the proper framework for the standing analysis. Russell, 321 S.W.3d at

856; In re K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2014,

no pet.). If the meaning of the statutory language is unambiguous, we adopt the

interpretation supported by the plain meaning of the provision’s words. Russell,

321 S.W.3d at 856. In Texas, standing in the context of a suit affecting the

parent-child relationship is governed by the family code; a party seeking relief in

such a suit must plead and establish standing within the parameters of the

language used in the code. Tex. Fam. Code Ann. §§ 102.003–.007 (West 2014);

see Russell, 321 S.W.3d at 856; Svoboda v. Svoboda, No. 03-09-00189-CV,

2009 WL 3151336, at *4 (Tex. App.—Austin Oct. 1, 2009, no pet.) (mem. op.).

Lack of Standing Under Section 102.003(a)(9)

S.H. contends that appellees did not prove standing under section

102.003(a)(9) of the family code. Section 102.003(a)(9) of the family code states

that a suit may be filed by “a person, other than a foster parent, who has had

actual care, control, and possession of the child for at least six months ending

not more than 90 days preceding the date of the filing of the petition.” Tex. Fam.

Code Ann. § 102.003(a)(9). “[S]tanding and subject matter jurisdiction are

determined at the time the lawsuit [is] filed,” so appellees must have had actual

care, control, and possession of E.C. for at least six months prior to January 24,

4 2013, the day the original petition was filed. See In re C.M.J., No. 02-12-00036-

CV, 2012 WL 6632748, at *2–3 (Tex. App.—Fort Worth, Dec. 21, 2012, no pet.)

(mem. op.) (affirming the trial court’s judgment that grandparents lacked standing

when the child had lived with them only three months before the suit was filed).

Appellees obtained exclusive possession of E.C. on August 17, 2012, filed their

original petition on January 24, 2013, and conceded on the record that E.C. had

lived with them for only five and a half months before the petition was filed.

Because appellees did not meet the statute’s unambiguous six-month

requirement, they lacked standing under section 102.003(a)(9) of the family

code. 4 See In re Kelso, 266 S.W.3d 586, 590–91 (Tex. App.—Fort Worth 2008,

orig. proceeding).

Lack of Standing Under Section 102.004(a)

S.H. also argues that appellees did not have standing under section

102.004(a) of the family code. This section provides,

In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, 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 circumstances would significantly impair the child’s physical health or emotional development; or

4 Appellees have not argued that they have standing under section 102.003(a)(9) in this appeal, but S.H. addressed that section because it was argued in the trial court.

5 (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

Tex. Fam. Code Ann. § 102.004(a)(1)–(2).

W.F., E.C.’s step-grandfather, lacks standing under section 102.004(a)

because he is not related to E.C. by consanguinity. See Russell, 321 S.W.3d at

859; see In re A.M.S., 277 S.W.3d 92, 98–99 (Tex. App.—Texarkana 2009, no

pet.). The government code provides that “[t]wo individuals are related to each

other by consanguinity if: (1) one is a descendant of the other; or (2) they share a

common ancestor.” Tex. Gov’t Code Ann. § 573.022(a) (West 2012). Because

W.F. has not shown that E.C. is his descendant or that they share a common

ancestor, he has not shown the requisite consanguinity with E.C. and, therefore,

his standing under section 102.004(a). See Tex. Fam. Code Ann. § 102.004(a);

A.M.S., 277 S.W.3d at 98–99. 5

S.H. argues further that B.F. did not have standing under section

102.004(a)(1) because she did not show that E.C.’s circumstances at the time of

filing threatened significant impairment of her physical health or emotional

development. Appellees argue that because S.H. was in jail and could not care

for E.C. when the suit was filed, and because R.S. was transient and unable to

be found, E.C.’s then present circumstances significantly impaired her physical

health and emotional development. Appellees argued at the trial court that

5 Appellees did not address or challenge whether W.F. was related to E.C. in the trial court or in this appeal.

6 “standing goes back to the time that they first had the child, as well as the time

they filed.” Appellees also alleged that there was “an emergency situation,

[which] provide[d] standing back on the day that [S.H.] was arrested,” and that

the situation continued through the time of filing.

Several Texas courts have addressed this issue and held that standing

relates to “the child’s circumstances on the date suit was filed.” K.D.H., 426

S.W.3d at 888 (emphasis added); see In re McDaniel, 408 S.W.3d 389, 397

(Tex. App.—Houston [1st Dist.] 2011, orig. proceeding); see Vogel, 261 S.W.3d

at 922. The San Antonio Court of Appeals has also held that a grandmother’s

arguments in the trial court did not suggest that the child’s present circumstances

endangered her because when the petition was filed, the child was living with the

grandmother. See In re S.M.D., 329 S.W.3d 8, 14 n.3 (Tex. App.—San Antonio

2010, pet. dism’d). The court went on to explain the type of evidence the

grandmother needed to offer to become managing conservator:

[T]he nonparent must offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. To meet this burden, the nonparent must present evidence of specific, identifiable behavior or conduct of the parent, as shown by specific acts or omissions, and evidence that such acts or omissions will probably cause that harm. . . . The link may not be based on evidence which merely raises a surmise or speculation of possible harm. . . . Further, evidence of past misconduct alone is insufficient. If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.

Id. at 16 (citations and internal quotation marks omitted).

7 On January 24, 2013, appellant was out of jail, living with appellees, and

working. At the hearing on the motion to set aside default judgment, appellees

did not offer any evidence other than S.H.’s previous arrest to show that

maintaining custody with S.H. would result in physical or emotional harm to E.C.

See id. Appellees stated that S.H. “was in no position to be caring for [E.C.],

taking her to school, or getting health insurance,” but this evidence is speculative

and points to no specific acts or omissions. See id. While S.H. may have had a

prior history of arrest, that misconduct alone was insufficient to show that she

was not suitable to have custody of E.C. when the suit was filed. See id. For

these reasons, B.F. also lacked standing to file suit under section 102.004(a)(1)

of the family code.

Likewise, appellees lacked standing under section 102.004(a)(2), which

requires that “both parents, the surviving parent, or the managing conservator or

custodian either filed the petition or consented to the suit.” Tex. Fam. Code Ann.

§ 102.004(a)(2). S.H. argues that neither she nor R.S. consented to the suit.

Appellees argue that S.H.’s signature on the waiver of citation conferred

standing, and R.S.’s transient status meant that his consent was not required.

Appellees argue that S.H.’s signature on the waiver of service equates to

consent to the suit. Service or a waiver of service is a means of attaining

personal jurisdiction over a party. See El Paso ISD v. Alspini, 315 S.W.3d 144,

149 (Tex. App.—El Paso 2010, no pet.); Olivarez v. State, No. 02-02-00225-CV,

2003 WL 21476320, at *1 (Tex. App.—Fort Worth June 26, 2003, no pet.) (mem.

8 op.). But consent to personal jurisdiction does not establish subject matter

jurisdiction, which cannot be conferred by waiver. See Russell, 321 S.W.3d at

857 (holding that mother’s signature on associate judge’s report did not result in

waiver of her right to challenge standing); In re C.R.B., 256 S.W.3d 876, 877

(Tex. App.—Texarkana 2008, no pet.) (holding that mother’s signature on agreed

order was only consent to personal jurisdiction). See generally, e.g., Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (op. on reh’g) (stating long-

standing principle that subject matter jurisdiction cannot be conferred by waiver).

Here, unlike the parent in A.M.S., S.H. never expressly agreed or consented to

the filing or continuation of the suit. 6 A.M.S., 277 S.W.3d at 98; accord In re

C.G.C., No. 12-08-00253-CV, 2010 WL 338062, at *4 (Tex. App.—Tyler Jan. 29,

2010, no pet.) (mem. op.). Thus, B.F. did not establish standing under section

102.004(a)(2) of the family code. See Tex. Fam. Code Ann. § 102.004(a)(2).

Because appellees did not show standing to file suit under any of the

pertinent sections of the family code, we sustain S.H.’s sole issue.

6 Because S.H. did not consent, it is irrelevant whether R.S.’s consent was required.

9 Conclusion

Having determined that appellees did not show standing to file their suit,

we reverse the trial court’s judgment and render judgment dismissing the suit.

/s/ Terrie Livingston

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

MCCOY, J., concurs without opinion.

DELIVERED: August 7, 2014