Joshua Armand Reyes v. Holly Lott ( 2022 )

Affirmed and Memorandum Opinion filed January 27, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00105-CV
JOSHUA ARMAND REYES, Appellant
V.
HOLLY LOTT, Appellee
On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-FM-19-005120
MEMORANDUM OPINION
Joshua Armand Reyes appeals from the trial court’s final order dismissing
his suit affecting the parent-child relationship (SAPCR) for lack of standing. See
Tex. Fam. Code § 109.002. Reyes filed the SAPCR seeking conservatorship of
T.G.L., who is the daughter of Reyes’s former live-in girlfriend, appellee Holly
Lott. Reyes alleged standing pursuant to Texas Family Code section 102.003(a)(9),
which confers standing on “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). The trial court, however, determined that Reyes did not have actual
care, control, and possession of T.G.L. for the requisite time.
In two issues, Reyes contends that the trial court erred in determining that he
did not have standing and in relying on the “parental presumption” and “best
interest” standards in making that determination. We affirm.1
Background
Lott gave birth to T.G.L. in March 2017. It is undisputed that T.G.L. has no
contact with her biological father. Reyes, Lott, and T.G.L. lived together from
January 2018 until July 2, 2019.2 Lott gave birth to a second daughter, C.R.R., with
Reyes in November 2018. After Lott moved out, Reyes filed a SAPCR regarding
C.R.R., and Lott filed a counterpetition. On July 30, 2019, Reyes also filed the
present SAPCR concerning T.G.L. In his petition, Reyes asserted standing
alternatively under two provisions of the Texas Family Code: section
102.003(a)(9) (providing general standing for people who had actual care, control,
and possession of the child), and section 102.004 (providing standing to certain
individuals when the child’s present circumstances would significantly impair the
child’s physical health or emotional development). Tex. Fam. Code §§
102.003(a)(9), 102.004. In this appeal, Reyes only asserts standing under section
102.003(a)(9).
Lott filed a motion to dismiss, challenging Reyes’s standing. The trial court
1
Because this case was transferred by the Third Court of Appeals in Austin, we apply
that court’s precedent to the extent of any conflict with our own precedent. See Tex. R. App. P.
41.3.
2
Reyes testified at the hearing on standing that they moved in together in October 2017.
The trial court, however, found that they moved in together in January 2018, and Reyes does not
specifically challenge that finding on appeal.
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held an evidentiary hearing on the standing question at which both Reyes and Lott
and Reyes’s father testified. Thereafter, the trial court granted Lott’s motion to
dismiss and dismissed Reyes’s SAPCR for want of jurisdiction. The court also
entered detailed findings of fact and conclusions of law. We will begin by setting
forth the law that governs our review before turning to the evidence introduced at
the hearing, the trial court’s findings, and the application of the law to the facts.
Governing Law
A party seeking conservatorship of a child must have standing to seek such
relief. In re Ramirez, No. 03-21-00145-CV, 2021 WL 1991269, at *3 (Tex. App.—
Austin May 19, 2021, orig. proceeding) (mem. op.). Standing implicates a court’s
subject-matter jurisdiction and therefore is a question of law we generally review
de novo. See In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). The Family Code
governs standing in SAPCRs; thus, a party seeking conservatorship must establish
standing consistent with the statutory requirements. See In re Ramirez, 2021 WL
1991269, at *3.
As indicated, among other grounds, Reyes alleged standing pursuant to
section 102.003(a)(9). A nonparent is granted SAPCR standing under that section
if, for the requisite six-month time period, the nonparent served in a
parent-like role by (1) sharing a principal residence with the child, (2)
providing for the child’s daily physical and psychological needs, and
(3) exercising guidance, governance, and direction similar to that
typically exercised on a day-to-day basis by parents with their
children.
In re H.S., 550 S.W.3d at 159–60. The section does not require a nonparent to have
exercised ultimate legal authority to control the child or that the parents must have
wholly ceded or relinquished their own parental rights and responsibilities. Id. at
160. Instead, the section looks to whether the nonparent “served in a parent-like
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role” to the child for the relevant time period, which can be shown by evidence the
nonparent consistently made the kinds of day-to-day efforts and decisions
associated with raising a child. See id. at 163; In re Ramirez, 2021 WL 1991269, at
*4.
Lott challenged Reyes’s standing in a motion to dismiss, which was
effectively the same as a plea to the jurisdiction. See Vernco Constr., Inc. v.
Nelson, 460 S.W.3d 145, 149 (Tex. 2015); Buzbee v. Clear Channel Outdoor,
LLC, 616 S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2020, no pet.). A plea
to the jurisdiction can challenge either the pleadings or the existence of
jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226–27 (Tex. 2004). When, as here, the existence of jurisdictional facts is
challenged, the court must consider evidence submitted by the parties when
necessary to resolve the jurisdictional issue. See Bland I.S.D. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000).
The parties disagree on the proper standards for reviewing the evidence
submitted in this case. When jurisdictional facts or issues implicate or overlap with
the merits in a case, the standing analysis mirrors that of a traditional summary
judgment, and if the evidence creates a fact question regarding the jurisdictional
issue, the trial cannot grant a plea to the jurisdiction but must await resolution of
the fact issue by the factfinder. Miranda, 133 S.W.3d at 217-18; GTECH Corp. v.
Steele, 549 S.W.3d 768, 773–74 & n.10 (Tex. App.—Austin 2018), aff’d sub nom.
Nettles v. GTECH Corp., 606 S.W.3d 726 (Tex. 2020). In these cases, many if not
most of the jurisdictional issues or facts will also determine whether the plaintiff is
entitled to relief on the merits. Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 807
(Tex. App.—Austin 2009, no pet.). When, however, the jurisdictional issue is not
intertwined with the merits of the claims, disputed fact issues are resolved by the
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court. Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015);
Poindexter, 306 S.W.3d at 806–07. The legal and factual sufficiency of the
evidence to support those express or implied findings can then be challenged on
appeal as with any other findings of fact. Prewett v. Canyon Lake Island Prop.
Owners Ass’n, No. 03-18-00665-CV, 2019 WL 6974993, at *2 (Tex. App.—
Austin Dec. 20, 2019, no pet.); Poindexter, 306 S.W.3d at 806–07.
There appears to have been some inconsistency among the courts of appeals
regarding whether jurisdictional facts pertinent to standing under section
102.003(a)(9) implicate or overlap with the merits of a determination of
conservatorship in a SAPCR. Compare In re D.K.P., No. 07-18-00158-CV, 2019
WL 4399475, at *4 (Tex. App.—Amarillo Sept. 13, 2019, no pet.) (mem. op.)
(holding evidence relevant to care, control, and possession for section
102.003(a)(9) standing purposes was also relevant to rebut the parental
presumption on conservatorship and that material question of fact therefore
precluded granting of plea to the jurisdiction), with In re P.W., No. 05-16-00524-
CV, 2017 WL 3587096, at *1 (Tex. App.—Dallas Tex. App. Aug. 21, 2017, no
pet.) (mem. op.) (holding jurisdictional facts under section 102.003(a)(9) did not
implicate the conservatorship merits and reviewing findings for legal and factual
sufficiency). This is perhaps due to differences in those particular cases.
In In re H.S., however, the supreme court addressed many of the same issues
pertaining to standing that are involved in the present case. The H.S. court
implicitly, if not explicitly, held that jurisdictional issues and facts under section
102.003(a)(9) did not implicate the merits. The H.S. majority addressed whether
the trial court’s fact findings were supported by evidence, which it would not have
done unless it concluded the jurisdictional issues were not intertwined with the
merits. 550 S.W.3d at 155; see also id. at 165–66 & n.15–17 (Guzman, J.,
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dissenting) (explaining that it would have been improper for the trial court to make
findings of fact or for the appellate courts to consider them if the jurisdictional
facts implicated the merits). The dissenting opinions also addressed the sufficiency
of the evidence to support the trial court’s findings. See id. at 167 (Blacklock, J.,
dissenting) (“We should review these findings of fact under a deferential legal
sufficiency standard.”); id. at 166 & n.21. In this case, we will follow the supreme
court’s lead and conclude the jurisdictional issues are not intertwined with the
merits of the claims; thus, the trial court court’s fact findings may be challenged on
appeal for legal and factual sufficiency. See Vernco Constr., 460 S.W.3d at 149;
Prewett, 2019 WL 6974993, at *2; Poindexter, 306 S.W.3d at 806–07.
When reviewing for legal sufficiency, we consider the evidence in the light
most favorable to the finding and indulge every reasonable inference that supports
the challenged finding. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
We credit favorable evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not. Id. at 827. If there is
more than a scintilla of evidence to support the finding, the legal sufficiency
challenge fails. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002). In reviewing the factual sufficiency of the evidence, we consider all
the evidence and set aside the judgment only if it is so contrary to the
overwhelming weight of the evidence that it is clearly wrong and manifestly
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The factfinder is the sole
judge of witness credibility and the weight to be given testimony. Keller, 168
S.W.3d at 819.
The Findings of Fact
It was undisputed that T.G.L. and Lott lived with Reyes for longer than the
minimum period required for standing under section 102.003(a)(9) and that Reyes
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filed his SAPCR petition by the statutory deadline. Among its fact findings
relevant to standing under section 102.003(a)(9), the trial court determined that at
all times, T.G.L. lived with Lott. The court further found that at all relevant times,
Lott chose and provided for T.G.L.’s daycare; provided T.G.L.’s clothing;
arranged with T.G.L.’s maternal grandfather to provide health insurance; made and
accompanied the child to all medical appointments; provided day to day care;
made all decisions regarding the child; managed and directed T.G.L.’s activities;
provided care when needed at night; and decided what time T.G.L. got up, went to
bed, how much TV she watched, whether she got dessert, and whether she went to
the doctor. The trial court also found that Lott provided the child’s food when they
lived with Reyes, even going to a food pantry when necessary. Among its
conclusions of law, the trial court held that Reyes did not have actual care, control,
and possession of T.G.L. for at least six months and therefore did not have
standing to file the SAPCR.
The Evidence
At the hearing, Lott emphasized that she paid for T.G.L.’s daycare and was
usually the one to drop her off and pick her up, but she said Reyes occasionally
picked up the child when Lott had to work and asked him to do so. Lott
acknowledged that she occasionally left T.G.L. in Reyes’s care but said it was
never overnight or for more than eight hours at a time. Lott explained that she
arranged for T.G.L. to have health insurance coverage through Lott’s father’s
insurance policy and asserted she always paid the copayment. She said that Reyes
may have accompanied them to the doctor once or twice in approximately 30
visits, but he never took T.G.L. to the doctor without Lott. Lott insisted that she
always got up with T.G.L. when the child woke at night and Reyes never did and
she was in charge of potty training, switching T.G.L. to formula and then to solid
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food, whether T.G.L. went to daycare, when T.G.L. got up and when she went to
bed, how much TV she got to watch, and whether she got dessert. Lott also said
she was in charge of disciplining T.G.L. Lott denied that Reyes regularly gave
T.G.L. baths, took her on outings without Lott, or took time off work to stay with
T.G.L., but she acknowledged that he referred to T.G.L. as his daughter, always
paid their rent, babysat T.G.L. on Wednesday nights when Lott was in school, and
would provide food on rare occasions. Lott said that she generally provided their
food and even used government food programs when necessary. Lott further
explained that Reyes always worked but she did not. She denied that Reyes gave
her money when she needed it and said she instead got money from her parents
when necessary.
Reyes testified that he acted as a father figure to T.G.L. from when she first
moved in with him and that he provided financial support to T.G.L., including
paying the rent and utilities wherever they lived, regularly paying for groceries,
and occasionally giving Lott money for insurance copayments when T.G.L. went
to the doctor. Reyes acknowledged, however, that he did not pay for T.G.L.’s
daycare.
Reyes recounted that T.G.L. calls him “dada,” and, in fact, it was one of her
first words. Reyes explained that Lott referred to him as T.G.L.’s father and
encouraged the girl to call him “dad.” Reyes refers to T.G.L. as his daughter, and
both he and Lott told their friends that he was T.G.L.’s father. Lott even bragged to
people about how good Reyes was with T.G.L.
Reyes further testified that he and T.G.L. did things together without Lott.
He took some sick leave that he had accumulated and stayed home with T.G.L.
when Lott was having difficulty paying for daycare. He would babysit her all day,
and they would go to the park and to an ice cream parlor and sometimes meet
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Reyes’s father for lunch. Reyes said his time with T.G.L. increased from there,
whenever Lott needed to attend orientation for school or just needed a break.
Reyes also maintained that he participated in T.G.L.’s day-to-day
upbringing, including bathing and feeding her, taking her to and picking her up
from daycare, and putting her to bed. He would read to her at night, and they had a
winking game they would play that helped her get sleepy. Reyes said that he and
Lott worked in unison on potty training T.G.L. and that he had researched the topic
to guide them.
Reyes denied that he only took care of T.G.L. one night a week when Lott
was in school. He asserted that it was typically three to four nights a week but
increased when Lott was taking classes and in the later stages of her second
pregnancy, to the point where it was pretty much every night.
Reyes insisted that he considers T.G.L. to be his daughter as much as he
does his biological daughter, C.R.R. He feels that they have a father-daughter
relationship; she runs to him and wants to be picked up by him when she sees him,
and she clings to him when they must part after a visit. T.G.L. also has a
relationship with Reyes’s family; she calls his father “papa” and considers his
parents to be her grandparents. Reyes also introduced photographs into evidence
showing him with T.G.L. and Lott.
Reyes acknowledged, however, that while he would make suggestions to
Lott regarding the parenting of T.G.L. and expressed concern when he did not
agree with a decision she made, Lott would often “overrule” him. He said that he
could not force Lott to do anything and was not the kind of person who would
anyway. As Reyes put it: “Once Holly would make a decision[,] instead of fighting
her on the decisions I would go ahead and participate in what—what she wanted
done.”
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Reyes’s father, Fernando Reyes, testified that Reyes’s relationship with
T.G.L. was no different than that between a biological father and child. She clings
to him, lights up when she sees him, and calls him “dada.” Fernando further said
that his son treats both of his girls the same. Fernando asserted he had personally
observed Reyes bathe, change, feed, and otherwise take care of T.G.L. Reyes also
nurtured T.G.L. emotionally.
Analysis
As discussed above, in order to demonstrate standing under section
102.003(a)(9), Reyes needed to show actual possession, care, and control of
T.G.L., i.e., that over a six-month period, he served in a parent-like role to T.G.L.
by (1) sharing a principal residence with her, (2) providing for her daily physical
and psychological needs, and (3) exercising the guidance, governance, and
direction similar to that typically exercised on a day-to-day basis by parents. See In
re H.S., 550 S.W.3d at 159–60. The determination turns in large part on whether
Reyes consistently made the kinds of day-to-day efforts and decisions associated
with raising a child. See id. at 163; In re Ramirez, 2021 WL 1991269, at *4.
The evidence clearly establishes Reyes shared a principal residence with
T.G.L. for over six months, and the trial court did not find otherwise. Thus, Reyes
likely established he had the requisite actual possession of T.G.L.
The record also demonstrates that to some extent, at least, Reyes took care of
T.G.L. When a nonparent takes daily responsibility for ensuring a child is fed,
clothed, and emotionally nurtured, that nonparent is taking “actual care” of the
child. H.S., 550 S.W.3d at 158. Reyes testified at length regarding his care for
T.G.L., and Lott acknowledged that Reyes did help from time to time and paid
their rent. In her testimony, however, Lott minimized Reyes’s role, stating that she
paid for T.G.L.’s daycare and medical visits and most of their food and that she
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usually dropped T.G.L. off and picked her up from daycare, took her to the doctor,
and got up with her at night when necessary. As factfinder, the trial court was sole
judge of the witnesses’ credibility and the weight to be given their testimony and
could accept Lott’s testimony over that of Reyes and his father. See Keller, 168
S.W.3d at 819.
The bigger problem for Reyes on this record, however, concerns whether he
demonstrated he had actual control of T.G.L. When a nonparent consistently
makes the kinds of day-to-day decisions associated with raising a child, such as
when the child gets up and goes to bed, how much television she watches, whether
she gets dessert, when she needs to go to the doctor, that nonparent is exercising
“actual control” over the child. H.S., 550 S.W.3d at 158. Reyes offered little in the
way of evidence that he made day-to-day decisions regarding T.G.L. Indeed, he
acknowledged that while he made suggestions and expressed concern when he did
not agree with Lott’s decisions regarding T.G.L., rather than arguing with Lott, he
would “participate in what . . . she wanted done.” In her testimony, Lott insisted
that she always made T.G.L,’s doctor appointments and she decided when T.G.L.
switched to formula and then to solid food, whether T.G.L. went to daycare, when
T.G.L. got up and when she went to bed, how much TV she got to watch, and
whether she got dessert. Lott also stated that she was in charge of disciplining
T.G.L. and potty training her. Except as to potty training, which he asserted was a
joint effort, Reyes did not dispute any of Lott’s claims regarding actual control of
T.G.L.
On this record, the trial court’s relevant findings and conclusion that Reyes
did not demonstrate he had actual control over T.G.L. is supported by legally and
factually sufficient evidence. Accordingly, the trial court did not err in granting
Lott’s motion to dismiss and dismissing Reyes’s SAPCR for want of jurisdiction.
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See Vernco Constr., 460 S.W.3d at 149; Prewett, 2019 WL 6974993, at *2;
Poindexter, 306 S.W.3d at 806–07. We overrule Reyes’s first issue.
The Parental Presumption and Best Interest
In his second issue, Reyes contends that the trial court erred by relying on
the “parental presumption” and “best interest” standards in making the standing
determination under section 102.003(a)(9). While these concepts apply to
conservatorship issues when raised in a SAPCR filed pursuant to section
102.003(a)(9), they are not relevant to the question of standing under that section.
See In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020); In re H.S., 550 S.W.3d at 155-
60.
In support of his contention that the trial court improperly relied on these
concepts in determining standing under section 102.003(a)(9), Reyes cites several
of the court’s fact findings. The cited findings, however, all appear to pertain to the
trial court’s consideration of standing under Family Code section 102.004, which
Reyes asserted as an alternative to standing under section 102.003(a)(9). Section
102.004 provides standing to certain individuals when the child’s present
circumstances would significantly impair her physical health or emotional
development. We find no support in the record for the contention that the trial
court applied the wrong standards of review in considering standing under section
102.003(a)(9). Accordingly, we overrule Reyes’s second issue.
We affirm the trial court’s final order.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
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