in the Interest of K.K.T. and K.M.T., Children

Opinion

NO. 07-11-00306-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 17, 2012

IN THE INTEREST OF K.K.T. AND K.M.T., CHILDREN

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 63,602-A; HONORABLE JAMES ANDERSON, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant B.T. is the paternal grandfather of K.K.T. and K.M.T.1 He challenges

the order of the trial court dismissing for lack of standing his suit affecting the parent-

child relationship (SAPCR). Finding no error by the trial court, we will affirm.

Background

K.K.T. was born in 2006, and K.M.T. in 2008. Their parents are C.B. (the

mother) and D.T. (the father). In a March 2009 order, the mother and father were

appointed joint managing conservators of the children and the mother was named as

1 We identify appellant and the children with initials and identify the parents of the children as the mother and the father to protect the identity of the children. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2011) (appellate court may identify parties in opinion by fictitious names or their initials). the conservator with the exclusive right to designate the primary residence of the

children. B.T. was not a party to the proceeding.

During the times material to the current proceeding, the father was incarcerated

with a projected release date of August 2011. B.T. and the mother live in Amarillo. The

children’s maternal grandmother and great-grandmother also live in Amarillo.

B.T. filed the current proceeding in March 2011, seeking to modify the March

2009 order by appointing him as a managing conservator with the right to designate the

children’s primary residence. He plead that the mother had voluntarily relinquished

actual care, control and possession of the children to him “for at least six months.”2

The mother answered and moved to dismiss B.T.’s modification action on the

ground he lacked standing under Family Code § 102.003(a)(9).3 The trial court took up

the issue of standing at an evidentiary hearing.

B.T. testified the children and the mother frequently moved. Between moves the

children often stayed with B.T. “Lots of times,” the mother also stayed with the children

at B.T.’s home. According to B.T., the children resided with him between April 1, 2010,

and March 10, 2011. But they also were with the mother at times during this period.

When asked how often B.T. replied, “That changes daily. . . . she’ll call you one second

2 See Tex. Fam. Code Ann. § 156.101 (West Supp. 2011) (grounds for modification of order establishing conservatorship). 3 Tex. Fam. Code Ann. § 102.003(a)(9) (West Supp. 2011).

2 and say she has to have [the children], you’ll go rush them to her, and little bit later

she’ll bring them back to you.”

During this period he was incarcerated, the father was permitted to telephone the

children at B.T.’s home4 on Tuesday and Thursday evenings, at about 8:00 p.m.

Because of the hour, and as K.K.T. would attend pre-kindergarten the following

morning, the children spent Tuesday and Thursday nights with B.T. In addition, each

weekend B.T. drove the children to the incarceration facility for a personal visit with the

father on Saturday. Apparently the father was moved among facilities. This affected

travel time and required that the children sometimes spend Friday and Saturday nights

with B.T. The mother testified that on rare occasions the children spent a Sunday with

B.T. On cross-examination, B.T. agreed the primary reason the children were with him

was to speak and visit with their father. While the children were staying with B.T., he

explained, if the mother “decided she wanted [the children] in between, she’d just call

and say, hey, bring me the kids” and he would comply.

The mother also testified the children stayed with B.T. to facilitate the telephone

calls and personal visits with their father. She agreed she wanted to ensure a

continuing relationship between the children and their father, and desired the children to

have a relationship with the father’s family. The mother agreed also that B.T. was

assisting her while she attended school. She took the children to the doctor, registered

K.K.T. for school, and took him to school. Various family members, including B.T., the

4 Why telephone calls from the father to K.K.T. and K.M.T. had to be placed to B.T.’s home is not explained by the record. 3 children’s uncle,5 and the children’s maternal great-grandmother, picked K.K.T. up after

school, and took K.K.T. to speech therapy. A friend of B.T.’s testified the children were

often with B.T., and had been in his home when the friend visited there. The maternal

grandmother also testified.

The trial court ruled B.T. lacked standing and dismissed his SAPCR. At the

request of B.T., the court issued two findings of fact: “[B.T.] did not have actual ‘control’

of the children for at least six months,” and “[B.T.’s] periods of possession were at [the

mother’s] permission and at her direction.” Citing Family Code § 102.003(a)(9) in a lone

conclusion of law, the court concluded B.T. lacked standing to bring the suit. This

appeal followed.

Analysis

Through two issues which we discuss jointly, B.T. argues the trial court erred in

determining he lacked standing to bring his modification action.

Standing is a necessary component of subject-matter jurisdiction, without which a

court lacks authority to hear a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444-45 (Tex. 1993).6 Standing is simply the right to be heard; it does not

mean a party also has a right to prevail. In re S.S.J.-J., 153 S.W.3d 132, 138

(Tex.App.--San Antonio 2004, no pet.). If standing is conferred by statute, we analyze

5 The uncle is the father’s brother, B.T.’s son, and lives with B.T. 6 But cf. Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 9 n.16 (Tex. 2008) (“[t]his Court has not indicated whether standing is always a matter of subject-matter jurisdiction”). 4 the standing issue according to the statutory framework. In re Fountain, No. 01-11-

0198-CV, 2011 Tex. App. Lexis 3327, at *11 (Tex.App.--Houston [1st Dist.] May 2,

2011) (orig. proceeding) (mem. op. on reh’g.) (citing Hunt v. Bass, 664 S.W.2d 323, 324

(Tex. 1984)). “The party seeking relief must allege and establish standing within the

parameters of the language used in the statute.” In re H.G., 267 S.W.3d 120, 124

(Tex.App.--San Antonio 2008, pet. denied). We review a trial court’s determination of

standing de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). In so doing, we take the pleadings as true and construe them in favor of

the pleader. Id. at 226-28. We also consider evidence relevant to the inquiry when

necessary. Id. at 227.

Among those who can file a suit for modification of an order providing for

conservatorship of a child is a person having standing to bring a SAPCR under Family

Code Chapter 102 at the time of filing the modification suit. Tex. Fam. Code Ann. §

156.002(b) (West Supp. 2011). For standing to bring the modification action, B.T. relies

on one of the categories under the general standing provision, Family Code § 102.003,

the category providing that “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” may file a SAPCR. Tex. Fam.

Code Ann. § 102.003(a)(9) (West Supp. 2011).

Whether a party satisfies the standing requirement under § 102.003(a)(9) is

necessarily fact-specific and determined on a case-by-case basis. In re M.P.B., 257

S.W.3d 804, 809 (Tex.App.--Dallas 2008, no pet.).

5 In § 102.003(a)(9), the adjective “actual” modifies each of the words in the

phrase “care, control, and possession of the child.” Jasek v. Tex. Dep’t of Fam. &

Protective Svcs., 348 S.W.3d 523, 532 (Tex.App.--Austin 2011, no pet.). The phrase

“actual control . . . of the child,” as used in § 102.003(a)(9), means “the actual power or

authority to guide or manage or the actual directing or restricting of the child . . . .” Id. at

533. Moreover, if the word “control” in § 102.003(a)(9) is to be given effect, it “must

mean something more than the control implicit in having care and possession of the

child.” In re K.K.C., 292 S.W.3d 788, 792 (Tex.App.--Beaumont 2009, orig. proceeding)

(also holding control there refers to the power or authority to guide and manage). The

words actual control “reflect the Legislature’s intent to create standing for those who

have, over time, developed and maintained a relationship with a child entailing the

actual exercise of guidance, governance and direction similar to that typically exercised

by parents with their children.” Jasek, 348 S.W.3d at 533.

We agree with the trial court that the pleadings and evidence, even when

construed in favor of B.T., fail to show he had the control over the children required for

standing.

B.T.’s actual control argument relies on the “common threads” the court in Jasek

found running through cases finding “actual care, control, and possession collectively to

be established.” 348 S.W.3d at 534 (italics ours). B.T. argues his relationship with the

children meets each of the factors the court there identified7 because the children have

7 The “common threads” listed by the court in Jasek included evidence the person asserting standing (1) lived in the same home as the child or lived in a home where the child stayed overnight on a regular and frequent basis, (2) made financial 6 a bedroom in his home where they regularly and frequently stayed overnight; he drove

them to school and daycare at his expense and drove K.K.T. to speech therapy; and he

purchased clothing for the children. What is missing from this record, however, is

evidence B.T. exercised the “actual power or authority to guide and manage” the

children. See Jasek, 348 S.W.3d at 537.

The undisputed evidence shows that the father’s temporary incarceration played

a heavy role in the arrangements for the children’s care during the time in question, and

shows that maintenance of those arrangements hinged on the mother’s will. Cf. In re

Kelso, 266 S.W.3d 586, 590-91 (Tex.App.--Fort Worth 2008, no pet.) (evidence did not

show child’s abode with grandparents was fixed or permanent but temporary, always

dependent on the mother’s consent); In re Fountain, 2011 Tex. App. Lexis 3327, at *16

(evidence did not indicate pattern of care and possession was intended to be

temporary). The testimony was that the children were with B.T. in his home according

to the shared desire of the mother and B.T. to facilitate a relationship with the father and

his family. That the children spent much time with their grandfather and often stayed

overnight in his home with him and their uncle, and that their grandfather provided

transportation for the children to school, daycare and other appointments demonstrate

he exercised care and possession of the children. But it does not demonstrate the

exercise of authority to guide and manage the children, beyond the control that is

implicit in the possession and care of three- and five-year-old children. In re K.K.C., 292

contributions benefitting the child, (3) was involved with the child’s education, and (4) was involved in matters involving the child’s general upbringing, like health care, feeding, and clothing. 348 S.W.3d at 534.

7 S.W.3d at 792. Nor does the evidence B.T. bought items of clothing for the children on

occasion when he considered the clothing their mother had sent to be inadequate

demonstrate the exercise of such authority.

The functional extent of B.T.’s control of the children is aptly summarized in his

hearing testimony that the mother will “call you one second and say she has to have

[the children], you’ll go rush them to her, and little bit later she’ll bring them back to you,”

and B.T.’s acknowledgement that when the mother told him to bring the children home

he complied. In sum, while the record shows B.T.’s commendable devotion to his son’s

children and efforts directed toward maintaining their relationship with their father during

his absence, it does not contain evidence B.T. exercised “guidance, governance and

direction similar to that typically exercised by parents with their children.” Jasek, 348

S.W.3d at 533. B.T. did not establish he possessed standing to file suit under §

102.003(a)(9). We affirm the order of the trial court dismissing his modification suit.

James T. Campbell Justice