in Re Christopher John Clay ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00404-CV
___________________________
IN RE CHRISTOPHER JOHN CLAY
Original Proceeding
Trial Court No. 16-07061-16
Before Gabriel, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
In this mandamus action, relator Christopher John Clay complains of the trial
court’s denial of his motions to strike the intervention petitions filed by real parties in
interest Gary Jackson, Cheryl Jackson, and John Dumas in a suit affecting the parent-
child relationship (SAPCR) regarding Clay’s young daughter Ann.1 Clay argues that
the real parties in interest failed to establish their statutory standing to intervene. We
agree that the Jacksons did not establish their standing to intervene by a
preponderance of the evidence. But we conclude that Dumas sufficiently established
his standing under section 102.003(a) of the family code. Thus, we grant in part
Clay’s mandamus petition as it relates to the Jacksons.
I. BACKGROUND
Clay and Dylan Arli Wilkes lived together beginning in 2011, and Ann was
born in 2014; Clay and Wilkes never married. The Jacksons are Ann’s maternal
grandparents. Clay and Wilkes stopped living together in August 2016. On
September 1, 2016, Clay filed a SAPCR, alleging that he and Wilkes “are or will be
separated” and requesting an order for conservatorship, possession, and access as
Ann’s biological father. On October 18, 2016, the trial court entered an agreed order
appointing Wilkes and Clay as joint managing conservators of Ann and giving Wilkes
1
In their mandamus pleadings, Clay and the real parties in interest redacted
Clay’s daughter’s name but used their full names. We follow their lead and identify
Clay’s daughter by a fictitious name. See Tex. Fam. Code Ann. § 109.002(d); Tex. R.
App. P. 9.8 cmt.
2
the right to designate Ann’s primary residence. The order gave Clay possession of
Ann every second and fourth Thursday evening through Friday evening;2 every first,
third, and fifth weekend; fourteen days in the summer; and alternate holidays.3 The
trial court also ordered Clay to pay monthly child support to Wilkes.
On August 28, 2017, Wilkes notified Clay that she and Ann would be moving
to Dumas’s home “by the end of September” 2017. Dumas and the Jacksons stated
that Wilkes and Ann moved in with Dumas in August, but some evidence indicated
that they did not move until late September. Dumas believed that he was Ann’s
stepfather “for all intents and purposes” at that time. Ann referred to Dumas’s
daughters as her sisters and called Dumas “Pops.”
On January 10, 2018, Wilkes filed a petition to modify the custody order,
seeking an increased amount of child support based on a material and substantial
change in Ann’s circumstances and because the previously ordered amount, which
had been agreed, did not comply with the family code. Clay answered and asked that
Wilkes’s modification request be denied. Dumas later argued that before Wilkes
sought to modify Clay’s child-support obligation, Clay “travelled quite a bit and
When Ann turned three in 2017, this provision was expanded from every
2
second and fourth Thursday evening through Friday to every second and fourth
Wednesday evening through Friday.
3
Clay describes this schedule as “close to a 50/50 possession schedule”; the
Jacksons and Dumas argue that the agreed schedule was “slightly less than expanded
standard possession.”
3
missed quite a bit of his agreed-upon time.” Clay recognized that he missed some of
his scheduled possession, but he and Wilkes worked together in an attempt to make
up the missed days.
Wilkes and Dumas became engaged in April 2018 and planned to marry in
October 2018. Wilkes died in a tragic car accident on July 11, 2018. When she died,
she and Ann lived with Dumas, but Wilkes and Dumas had not married. Ann never
lived with the Jacksons. Since Wilkes’s death, Ann has been living with Clay and his
wife.4 Ann has had reduced contact with the Jacksons and almost no contact with
Dumas.
On July 18, 2018, one week after Wilkes died, Clay filed a motion in the
pending SAPCR to terminate his child-support obligations and to dismiss the case.
On July 27, the Jacksons filed a petition in intervention, which they amended on
September 10, seeking to be named Ann’s joint managing conservators with Clay or,
alternatively, to be awarded “periods of possession.” They alleged that Clay’s sole
managing conservatorship would not be in Ann’s best interest because it “would
significantly impair [her] physical health or emotional development.” To justify their
standing, the Jacksons specifically relied on family code section 102.004 or,
alternatively, on section 153.433(b). On August 29—less than ninety days after
Wilkes’s death—Dumas also filed a petition in intervention, which he amended on
4
Clay married his wife after Wilkes’s death.
4
September 10, seeking to be named a joint managing conservator of Ann along with
Clay. He also alleged that Ann’s physical health or emotional development would be
significantly impaired if Clay continued as her sole managing conservator. Dumas
relied on family code section 102.003(a)(9) and (a)(11) to establish his standing to
intervene. Clay filed motions to strike the intervention petitions, arguing that neither
the Jacksons nor Dumas had established standing, which divested the trial court of
subject-matter jurisdiction.
In September, the Jacksons filed an original application in probate court to
establish a management trust for Ann’s estate. Ann was the beneficiary of Wilkes’s
life-insurance policy, which was valued at $400,000. In response, Clay filed an
application to be named the permanent guardian of Ann’s estate.5 The Jacksons
opposed Clay’s application, arguing that he “seems dead set on obtaining additional
money to help him discharge his parental obligations” and that a less restrictive
alternative than Clay being named guardian of Ann’s estate was available—a
management trust. The probate court held a hearing on Clay’s guardianship
application on October 1, but neither the mandamus record nor the parties indicate
whether the probate court ruled on the application or whether the application is still
pending.
5
Clay initially sought to have the SAPCR transferred to the probate court but
later withdrew that request.
5
On October 15, the trial court held an evidentiary hearing on Clay’s motions to
strike and signed an order denying them on November 20. No party requested
findings of fact and conclusions of law. See Tex. R. Civ. P. 296. The Jacksons and
Dumas then requested temporary orders naming Dumas and Clay joint managing
conservators of Ann with the joint right to designate her primary residence and jointly
awarding Dumas and the Jacksons the possession time Wilkes had been awarded in
the agreed custody order. The Jacksons did not request temporary conservatorship.
On December 4, the trial court notified the parties that it had set the Jacksons and
Dumas’s motion for a January 2019 hearing.
On December 11, Clay filed a mandamus petition requesting an emergency stay
of the trial court’s proceedings and complaining of the trial court’s order denying his
motions to strike the intervention petitions. We requested a response from the
Jacksons and Dumas and granted Clay’s emergency motion, staying all trial-court
proceedings. See Tex. R. App. P. 52.8(b), 52.10(b). In his petition, Clay argues that
the trial court clearly abused its discretion by failing to dismiss the intervention
petitions for a lack of standing and that allowing Dumas’s intervention violated his
constitutional right to parent Ann.
II. AVAILABILITY OF REMEDY
Generally, mandamus is available if the trial court violates a duty imposed by
law or clearly abuses its discretion, either in determining the controlling legal
principles or by applying the law to the facts, when there is no adequate remedy at
6
law. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). A
trial court has no discretion in determining what the law is or in applying the law to
the particular facts. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)
(orig. proceeding).
As particularly relevant here, “[m]andamus relief is permissible when a trial
court abuses its discretion by erroneously denying a motion to strike a petition in
intervention.” In re O’Quinn, 355 S.W.3d 857, 861–62 (Tex. App.—Houston [1st
Dist.] 2011, orig. proceeding [mand. denied]); see In re Derzapf, 219 S.W.3d 327, 333
(Tex. 2007) (orig. proceeding) (per curiam). See generally Rolle v. Hardy, 527 S.W.3d 405,
419 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (stating appellate court reviews
chapter 102 standing of nonparent to seek motion to modify conservatorship for
abuse of discretion). And because “an order denying a motion to dismiss for lack of
standing in a [SAPCR] is not appealable,” there is no adequate remedy at law. In re
McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.] 2011, orig.
proceeding) (citing In re Roxsane R., 249 S.W.3d 764, 775 (Tex. App.—Fort Worth
2008, orig. proceeding)); see In re L.F., No. 02-17-00310-CV, 2017 WL 4684025, at *3
(Tex. App.—Fort Worth Oct. 19, 2017, orig. proceeding) (mem. op.). Therefore, if
the trial court clearly misapplied the law regarding subject-matter jurisdiction in ruling
on the Jacksons’ and Dumas’s intervention petitions, we may appropriately issue a
writ of mandamus. See Derzapf, 219 S.W.3d at 333; In re Shifflet, 462 S.W.3d 528, 541–
42 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding); see also In re Tex. Dep’t of
7
Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (op. on
reh’g) (acknowledging appeal frequently is inadequate remedy in child-custody cases).
III. STANDING
Standing is a component of subject-matter jurisdiction and is a constitutional
prerequisite to maintain suit. See In re H.S., 550 S.W.3d 151, 155 (Tex. 2018); In re
M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied) (op. on reh’g).
Standing in a SAPCR is governed by the family code. See In re E.G.L., 378 S.W.3d
542, 547 (Tex. App.—Dallas 2012, pet. denied). As a question of law, we review
standing de novo. Rolle, 527 S.W.3d at 415.
A party seeking relief in a SAPCR must allege and establish standing within the
parameters of the language used in the relevant statute. See In re Tinker, 549 S.W.3d
747, 751 (Tex. App.—Waco 2017, orig. proceeding [mand. denied]); In re G.H.,
No. 02-14-00261-CV, 2015 WL 3827703, at *2 (Tex. App.—Fort Worth June 18,
2015, no pet.) (en banc) (mem. op. on reconsideration). “If a party fails to do so, the
trial court must dismiss the suit.” Tinker, 549 S.W.3d at 751. But if the Jacksons or
Dumas raised a fact question regarding the jurisdictional issue, the trial court cannot
dismiss their intervention petitions for lack of standing. See Shifflet, 462 S.W.3d at 538.
It becomes a fact issue for the factfinder to determine at a trial on the merits of an
intervention petition. See H.S., 550 S.W.3d at 162; In re M.J.G., 248 S.W.3d 753, 758
(Tex. App.—Fort Worth 2008, no pet.); see also In re SSJ-J, 153 S.W.3d 132, 137–38
(Tex. App.—San Antonio 2004, no pet.) (recognizing that standing under section
8
102.003 “does not mean the right to win; it is only a right to be heard” and that
intervenor nevertheless “must still overcome the parental presumption” on the merits
of managing-conservatorship claim against parent). See generally Tex. Fam. Code Ann.
§ 153.131 (supplying presumption that parent shall be appointed sole managing
conservator unless such appointment would significantly impair child). Because the
trial court did not enter, and no party requested, findings and conclusions regarding
the denial of Clay’s motions to strike, we must draw every reasonable inference
supported by the record in support of the trial court’s ruling. See In re I.I.G.T.,
412 S.W.3d 803, 808 (Tex. App.—Dallas 2013, no pet.).
A. THE JACKSONS
1. Section 102.004
The Jacksons primarily alleged that they had standing under family code section
102.004.6 That section would give them standing to intervene and request joint
managing conservatorship with Clay, as opposed to possession or access, if they had
“substantial past contact” with Ann and produced “satisfactory proof” that such
conservatorship “is necessary because the child’s present circumstances would
significantly impair the child’s physical health or emotional development.” Tex. Fam.
6
We note that section 102.004(a) addresses standing regarding grandparents
who file an original suit requesting managing conservatorship. Tex. Fam. Code Ann.
§ 102.004(a). The Jacksons sought leave to intervene in a pending SAPCR, which is
governed by section 102.004(b). See In re Schnick, No. 04-18-00839-CV, 2018 WL
6624380, at *3 (Tex. App.—San Antonio Dec. 19, 2018, orig. proceeding).
9
Code Ann. § 102.004(b)(1); see Derzapf, 219 S.W.3d at 332 n.10. Satisfactory proof is a
preponderance of the evidence existing at the time the Jacksons sought to intervene.
See Shifflet, 462 S.W.3d at 537; see also Rolle, 527 S.W.3d at 417.
Generally in a determination of whether standing was established, appellate
courts review the record in the light most favorable to the party attempting to
establish standing. See Rolle, 527 S.W.3d at 415. But because section 102.004 attempts
to protect a parent’s constitutional right to parent free from interference, that light is
turned off, and we review the entire record for satisfactory proof, i.e., a
preponderance, to support the trial court’s inferred finding that at the time the
Jacksons filed their intervention petition, Ann’s circumstances—Clay’s sole managing
conservatorship—would significantly impair her physical health or emotional
development. See id. at 415–18. In short, the burden of proof remained on the
Jacksons to show their standing by a preponderance of the evidence. See id. at 417–
18.
And while we must defer to all record-supported and reasonable inferences in
support of the trial court’s ruling, section 102.004 “places a very heavy threshold
burden on a grandparent seeking to intervene in a SAPCR.” Whitworth v. Whitworth,
222 S.W.3d 616, 645 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on reh’g); see
I.I.G.T., 412 S.W.3d at 808. This burden required the Jacksons to show by a
preponderance some specific, identifiable behavior or conduct by Clay that would
significantly impair Ann physically or emotionally. See Rolle, 527 S.W.3d at 420. This
10
is more than evidence that the grandparents would be “better” managing conservators
than the parent or that the grandparents have a strong relationship with the child. See
id. In short, the focus is on Ann and her physical and emotional development, not the
effect of Clay’s sole managing conservatorship on the Jacksons. See In re Russell,
321 S.W.3d 846, 863 (Tex. App.—Fort Worth 2010, orig. proceeding [mand. denied]).
In Cheryl’s declaration, which was attached to the Jacksons’ intervention
petition, she stated that she had been a “full time component” of Ann’s life since
Ann’s birth:
I care for [Ann] when she is not in school [because both Wilkes and Clay
worked outside the home]. She frequently spent the night with us. . . .
[Ann] and I have both a morning and an evening routine. I have taken
her to or attended medical appointments. I have fed, clothed and
bathed [Ann]. I have comforted her when she is hurt and am especially
concerned for her now.
After Wilkes’s death, the Jacksons, Dumas, and Clay met with a counselor who
“firm[ly]” and “with great conviction” told them that “the most important thing” for
Ann in the wake of Wilkes’s death was to “retain her routine and to be with the
people she knew.” Even so, Cheryl declared that Clay “chipped away at [the Jacksons’
and Dumas’s] access” to Ann and indicated to Cheryl in July 2018 that he would
withdraw Ann from her current preschool for convenience, further reducing the
amount of time the Jacksons would see Ann. Clay also told Cheryl that he might
move to Corpus Christi to be near his family.
11
At the October 2018 hearing on Clay’s motions to strike the intervention
petitions, the counselor verified that she had said that maintaining Ann’s routine was
important. During her meeting with the Jacksons, Dumas, and Clay, the counselor
recounted that Dumas stated he and Wilkes previously had no issues with Clay’s
parenting but that Gary stated he did not like Clay and never would. The counselor
stated that at the meeting, it seemed that the four were “working together” in Ann’s
best interest. The counselor also had previously counseled Clay and Wilkes about
Clay’s “parenting issues” and suggested that Clay take parenting classes “to help him
gain a healthy understanding of best practices to effectively interact with, discipline,
and care for his 3 year old child.” One such issue was that Clay was spanking Ann.
Approximately one month after Wilkes’s death, Clay told the counselor that he was
going to change counselors, and she told him that Ann was in a good place
“therapeutically” by that time.
Cheryl testified at the hearing to many of the facts she included in her
declaration, averring that she had been Ann’s primary caregiver and that Gary had
participated in Ann’s care. Cheryl disputed Clay’s assertion that his possession
schedule with Wilkes was 50/50, and pointed out that for most of Ann’s milestones—
sitting up unaided and taking her first steps—she was with Cheryl. Cheryl pointed out
that Ann saw Clay’s family in Corpus Christi only about four times a year.
After Wilkes’s death, Clay allowed the Jacksons to continue keeping Ann in the
afternoons; but after they filed their intervention petition and requested a
12
management trust, Clay told them that he was putting Ann at a different, full-time
preschool and that he had informed the preschool to not allow the Jacksons to pick
up Ann. When Clay allowed the Jacksons to see Ann, Cheryl became concerned for
Ann: “She has come to me [twice] with clothes too tight, shoes so small that they hurt
her feet.[7] She is becoming withdrawn and sad. She’s losing her self-confidence. She
has nightmares. She seems happy, and then she’ll suddenly break down in tears for
no reason.” But Cheryl admitted that she never alleged that Clay was not fit to be a
joint managing conservator and that Clay had allowed her to spend “a lot of time”
with Ann since Wilkes’s death. She requested that she and Gary be allowed to step
into Wilkes’s shoes and have the same possession schedule Wilkes had with Clay
before her death. Cheryl also testified that Clay’s questions to her about how to care
for Ann showed he was a good parent.
Clay testified that he has been actively involved in Ann’s life and denied that he
completely cut the Jacksons out of her life after Wilkes died. After the Jacksons
intervened in the SAPCR and sought a management trust for Ann’s estate, Clay told
them that he would be ferrying Ann to preschool himself “due to the current
proceedings.” He stated that it was important to him that the Jacksons remain in
Ann’s life. He testified that he changed Ann’s counselor because he wanted someone
7
Ann’s clothes remained in Ann’s room at Dumas’s house after Wilkes’s death.
13
who specialized in child trauma, which the former counselor did not. Clay noted that
Ann was “doing great” and had shown a lot of improvement since Wilkes’s death.
This evidence is less than a preponderance that Clay’s sole managing
conservatorship would significantly impair Ann’s physical health or emotional
development. See generally In re L.D.F., 445 S.W.3d 823, 830 (Tex. App.—El Paso
2014, no pet.) (recognizing standard for intervenor to establish standing under section
102.004 is a “high bar”). The counselor verified that it was very important for Ann to
keep her routine and be with familiar people, but she also stated that when Clay took
Ann to a different counselor in August 2018, Ann was in a good place therapeutically.
Cheryl was concerned for Ann’s wellbeing and noted that she wore too small clothes
and had nightmares, but she agreed that Clay should be a joint managing conservator
and that he was a good parent. And the Jacksons’ involvement in caring for Ann
before Wilkes’s death does not supply the needed quantum of evidence regarding
standing absent evidence that Clay’s sole managing conservatorship would
significantly impair Ann. See Tex. Fam. Code Ann. § 102.004(b) (conferring standing
on grandparent with “substantial past contact with child” to intervene in pending
SAPCR only with proof of substantial impairment); cf. H.S., 550 S.W.3d at 156 (noting
general standing statute in section 102.003(a)(9) does not confer standing on
nonparents “who do not share a principal residence with a child for the statutory time
period . . . regardless of how extensively they participate in caring for her”). The
evidence in this case does not equate to satisfactory proof that Clay’s sole managing
14
conservatorship would significantly impair Ann’s physical health or emotional
development, raising only a suspicion of possible harm. See, e.g., Rolle, 527 S.W.3d at
420, 422–23; In re H.L., No. 02-14-00388-CV, 2016 WL 354080, at *5 (Tex. App.—
Fort Worth Jan. 28, 2016, pet. denied) (mem. op.); Russell, 321 S.W.3d at 863;
cf. L.D.F., 445 S.W.3d at 830–32 (finding “more than enough evidence” of significant
impairment under section 102.004 to establish grandmother’s standing—father’s
mental-health diagnosis and hospitalizations, father’s refusal to consistently take
required psychiatric medication, child’s distress when separated from grandmother,
father’s past drug use, and father’s criminal history). Even indulging all record-
supported, reasonable inferences to support the trial court’s ruling, the Jacksons did
not proffer satisfactory proof of Ann’s significant impairment and, thus, did not meet
their burden under section 102.004(b) to establish their standing to intervene seeking
conservatorship.
2. Section 153.433(b)
The Jacksons alternatively relied on section 153.433(b) to establish their
standing to intervene and seek possession or access to Ann. That section gives a trial
court authority to grant a grandparent possession of or access to a child over a
parent’s objections if it specifies in the order that the grandparent overcame the
parental presumption by providing a preponderance of evidence that “the denial of
possession of or access to the child would significantly impair the child’s physical
health or emotional well-being.” Tex. Fam. Code Ann. § 153.433(b)(2); see Derzapf,
15
219 S.W.3d at 332 n.10. Section 153.433(b) does not confer standing on a
grandparent to file an original SAPCR or to seek leave to intervene in a pending
SAPCR; it provides for the specificity required in an order granting possession or
access to a grandchild, including that the grandparent overcame the parental
presumption by proving substantial impairment. Tex. Fam. Code Ann. § 153.433(b);
see Derzapf, 219 S.W.3d at 331–32; Swoboda v. Swoboda, No. 03-09-00189-CV, 2009 WL
3151336, at *4 (Tex. App.—Austin Oct. 1, 2009, no pet.) (mem. op.); Tope v. Kaminski,
793 S.W.2d 315, 317 (Tex. App.—El Paso 1990, writ dism’d). But even so, the
Jacksons did not show significant impairment by a preponderance of the evidence.
See Tex. Fam. Code Ann. § 153.433(a)(2), (b)(2); cf. In re Scheller, 325 S.W.3d 640, 642–
44 (Tex. 2010) (orig. proceeding) (per curiam) (concluding trial court abused its
discretion by temporarily ordering access and possession under section 153.433(a)(2)
because grandparent failed to show substantial impairment to overcome parental
presumption). The Jacksons alleged no further grounds for standing in the trial court,
and we are bound by their pleadings.8 See In re Guardianship of C.E.M.-K., 341 S.W.3d
68, 77 n.2 (Tex. App.—San Antonio 2011, pet. denied).
8
In their mandamus response, the Jacksons argue that section 153.432 would
also supply the needed standing to seek possession or access. Tex. Fam. Code Ann.
§ 153.432. They did not plead this ground for standing in the trial court. Further,
section 153.432(c) also requires a showing of significant impairment to establish
standing, rendering this section similarly unavailing to the Jacksons’ standing. Id.§ 153.432(c); In re J.R.W., No. 05-15-01479-CV, 2017 WL 3083930, at *2 (Tex.
App.—Dallas July 20, 2017, no pet.) (mem. op. on reh’g).
16
B. DUMAS
As with the Jacksons’ standing assertion, Dumas had the burden of proof to
show his standing by a preponderance, and we indulge any reasonable inferences
found in the evidence to support the trial court’s ruling. See I.I.G.T., 412 S.W.3d at
808; In re A.B.O., No. 06-14-00071-CV, 2015 WL 2236593, at *3 (Tex. App.—
Texarkana May 12, 2015, no pet.) (mem. op.); C.E.M.-K., 341 S.W.3d at 77–78. To
establish his standing to seek conservatorship, Dumas relied on the general family-
code statute conferring standing to file an original conservatorship suit or an
intervention petition on (1) “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” or on (2) “a person with
whom the child and the child’s . . . 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 . . .
parent is deceased at the time of the filing of the petition.” Tex. Fam. Code Ann. §
102.003(a)(9), (11); see In re J.A.T., 502 S.W.3d 834, 837 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (recognizing section 102.003 applies to intervention petitions as
well as original conservatorship actions).
1. Section 102.003(a)(9)
The supreme court has held the meaning of “actual care, control, and
possession” required by section 102.003(a)(9) to be if, for a six-month period that
ends not more than ninety days before the nonparent’s intervention petition is filed,
17
“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.” H.S., 550 S.W.3d at 160.
Before reviewing the factors to determine whether Dumas served in a parent-
like role under section 102.003(a)(9), we address Clay’s argument that the number of
days Ann was physically at Dumas’s house based on Clay and Wilkes’s “very close to a
50/50 [possession] split” was less than the required six months. In the trial court,
Clay relied on his self-made tracking calendars and testified that between September
12, 2017, and July 11, 2018, the maximum number of days that Ann was actually
present at Dumas’s home was 166. And at the hearing on Clay’s motions to strike,
Dumas seemed to agree that to get to “the 180-day mark,” several days before the
earliest date Wilkes and Ann could have moved in with him would have to be
counted.
The general standing statute, however, clearly provides that the duration
requirements in section 102.003(a)(9), (11), and (12) need not be continuous or
uninterrupted but that the courts must consider the child’s “principal residence”
during “the relevant time preceding the date of commencement of the suit.” Tex.
Fam. Code Ann. § 102.003(b); see In re B.A.G., No. 11-11-00354-CV, 2013 WL
364240, at *7 (Tex. App.—Eastland Jan. 31, 2013, no pet.) (mem. op.). As we stated
before, Ann’s principal residence is a component of whether Dumas had actual care,
18
control, and possession of Ann sufficient to show standing; thus, we will look to
whether Ann’s principal residence was with Dumas for the required time period and
decline Clay’s invitation to manually count which days Ann was physically present in
Dumas’s home. See H.S., 550 S.W.3d at 156 (concluding that six-month period in
section 102.003(a) does not confer standing on nonparents “who do not share a
principal residence with a child for the statutory time period . . . regardless of how
extensively they participate in caring for her”); In re Fountain, No. 01-11-00198-CV,
2011 WL 1755550, at *4 (Tex. App.—Houston [1st Dist.] May 2, 2011, orig.
proceeding) (mem. op. on reh’g) (“In the absence of any requirement that a person
with standing exercise exclusive care, control, or possession, the question of Katcher’s
statutory standing hinges on whether she exercised ‘actual’ care, control, or possession
of the child.” (emphasis added)); Smith v. Hawkins, No. 01-09-00060-CV, 2010 WL
3718546, at *3 (Tex. App.—Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem.
op.) (“Aunt’s care, custody, control, and possession, while not exclusive, had been
consistent over a substantial period of time. Nothing in section 102.003(a)(9) requires
that care, custody, control, and possession be exclusive.”). In short, we take the
legislature at its word and do not consider whether Dumas’s actual care, control, and
possession was discontinuous or interrupted by the agreed custody order or by times
Wilkes traveled with Ann without Dumas as asserted by Clay. See B.A.G., 2013 WL
364240, at *5 (“Because the legislature instructed courts . . . to determine ‘the child’s
principal residence’ rather than requiring that the period be ‘continuous and
19
uninterrupted,’ it seems to have contemplated that foster parents, stepparents, and
third-party caregivers are all parties who may not have exclusive or continuous
custody.”).
a. Ann’s principal residence
We now turn to Ann’s principal residence during the disputed time period. A
principal residence is a fixed place of abode that is occupied consistently over a
substantial period of time and is permanent rather than temporary. See In re Kelso,
266 S.W.3d 586, 590 (Tex. App.—Fort Worth 2008, orig. proceeding) (citing In re
M.P.B., 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.)); cf. Snyder v. Pitts,
241 S.W.2d 136, 140 (Tex. 1951) (orig. proceeding) (stating similar elements to
determine residence for venue purposes).
On August 28, 2017, Wilkes, as was her right under the agreed custody order,
notified Clay that she was designating Ann’s primary residence to be at Dumas’s
home where they were moving.9 Wilkes changed her driver’s license to reflect
Dumas’s address as her own. Dumas’s home was eleven miles farther from Clay’s
home than Wilkes’s prior apartment. Dumas testified that Wilkes and Ann moved in
9
We recognize that a primary residence is not the same as a principal residence;
but we conclude that Wilkes’s designation of Ann’s primary residence for purposes of
the agreed custody order is a fact to be considered in our principal-residence
determination for standing. See generally Doncer v. Dickerson, 81 S.W.3d 349, 358–59
(Tex. App.—El Paso 2002, no pet.) (distinguishing right to designate child’s primary
residence in custody order from principal residence to establish standing under
section 102.003(a)).
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with him in August 201710 and remained for the next ten months. Ann had her own
bedroom and bathroom in Dumas’s house, and most if not all of Ann’s clothes were
kept in this bedroom. At the time of the hearing on Clay’s motion to strike Dumas’s
intervention petition, Ann’s bedroom remained as it was while she was still living at
Dumas’s home. Dumas estimated that before Wilkes’s death, Ann generally spent
five to seven nights each week at his home. Dumas and Wilkes’s cat, Pumpkin, had
always slept with Ann in this bedroom and after Wilkes’s death, Pumpkin continued
to sleep on the floor outside Ann’s room.
b. Providing for Ann’s daily physical and psychological needs
Dumas produced evidence that he was involved in “all aspects” of Ann’s life.
He, Wilkes, and Ann were a “family unit,” and Ann called Dumas “Pops.” Ann
considered Dumas’s two daughters to be her sisters. Although Dumas did not
normally attend Ann’s doctor appointments, he assisted with her care and gave Ann
her medicine. In one instance, Dumas insisted, over Wilkes’s initial objection, that
Ann be taken to a doctor on a Saturday when Ann had flu-like symptoms. He and
Wilkes toilet trained Ann and helped her “overcome” a “set . . . back” she had after
Clay spanked her for having an “accident.”
10
As we recognized earlier, the evidence was disputed about exactly when
Wilkes and Ann moved in with Dumas—early August, August 28, or September 12,
2017—but even the latest move-in date was more than six months before Wilkes’s
July 11, 2018 death, which was when Dumas’s asserted actual care, control, and
possession of Ann ended.
21
Dumas was a part of Ann’s “life and routine.” On school mornings, Dumas
made Ann’s breakfast and they ate together. Dumas helped Ann get dressed before
either he or Wilkes took her to preschool or to the Jacksons’ home. After Ann,
Wilkes, and Dumas returned home in the evenings, Dumas cooked, and the three
would “eat dinner as a family.” Dumas got Ann ready for bed and enforced Ann’s
television-time limit and bedtime. When Ann woke up in the middle of the night,
Dumas got up with her and took her “back to bed with hugs and kisses.” On the
weekends, he, Wilkes, and Ann did family activities, such as swimming in the pool at
their home, going “places[,] or just stay[ing] at home and snuggl[ing] on the couch.”
c. Exercising guidance, governance, and direction similar
to that typically exercised on a day-to-day basis by parents
Dumas was listed as Ann’s emergency contact at her preschool, and he believed
he had the right to “make decisions for her at school.” Clay testified that Dumas had
no legal authority to make any decisions for Ann, and Dumas admitted that only Clay
and Wilkes had the legal right to make medical decisions for Ann. Dumas stated that
he was “a decision maker for [Ann] as a parent.” In fact, he had set Ann’s bed time
and had enforced it. He also enforced any punishments. In short, Dumas made “not
only day-to-day decisions like what to have for dinner and when is bedtime . . . but
[also] large decisions like education and other decisions.” Wilkes did not have “veto
power” when she and Dumas made decisions for Ann. In other words, Dumas was a
co-parent with Wilkes and participated in Ann’s parenting “[e]very day.” When asked
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what happened when he and Wilkes disagreed about parenting decisions, Dumas
testified,
We would talk about what was in the best interest of [Ann] and what we
thought was best for the situation. And we didn’t disagree very much on
how to parent [Ann] or how to parent in general. So we would talk
about it. And sometimes I would win out on what needed to happen,
and sometimes [Wilkes] would win out.
d. Holding regarding Dumas’s actual care, control, and possession
We conclude that the evidence as a whole shows by at least a preponderance
that Ann’s principal residence for the required time period was with Wilkes and
Dumas in Dumas’s home. Dumas’s home was a permanent home for Ann, and she
lived there with Wilkes and Dumas as her designated, primary residence for
approximately ten months—a substantial period of time for a preschooler—which
ended less than ninety days before Dumas sought to intervene. During this time
period, Dumas, along with Wilkes, regularly provided for Ann’s daily physical and
psychological needs and exercised guidance, governance, and direction to Ann as
would be expected from a parent. Accordingly, Dumas met his burden to show his
standing to intervene under section 102.003(a)(9) and seek conservatorship, and we
cannot conclude that the trial court clearly abused its discretion by concluding Dumas
had standing to intervene. See, e.g., H.S., 550 S.W.3d at 160–61; In re Crumbley, 404
S.W.3d 156, 159–60 (Tex. App.—Texarkana 2013, orig. proceeding); C.E.M.-K., 341
S.W.3d at 75–78; In re Y.B., 300 S.W.3d 1, 4–5 (Tex. App.—San Antonio 2009, pet.
denied) (op. on reh’g). Again, our holding does not mean Dumas overcame the
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parental presumption and will prevail on the merits of his intervention requests, only
that he is entitled to be heard.
2. Section 102.003(a)(11)11
Dumas also alleged section 102.003(a)(11) to supply the necessary standing to
intervene. This section required him to show by a preponderance that Wilkes and
Ann resided with him for six months before Wilkes died. See Tex. Fam. Code Ann.
§ 102.003(a)(11). Again, this required time period does not have to be continuous but
does have to be at Ann’s “principal residence.” Id. § 102.003(b). “Resided” in section
102.003(a)(11) has been defined as “living together in the same household.” Tex.
Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001).
For the reasons we discussed regarding section 102.003(a)(9), Dumas produced
a preponderance of evidence that Ann and Wilkes moved in to his home as Ann’s
designated primary residence at the latest in September 2017, that his home was Ann’s
principal residence, and that they lived together in the same household until Wilkes’s
death in July 2018. Reasonable inferences can be drawn to support the trial court’s
implicit conclusion that Dumas established his standing under section 102.003(a)(11),
which does not consider the merits of Dumas’s conservatorship request.
We address Dumas’s alternate, alleged standing ground in an abundance of
11
caution and because the trial court did not specify on which ground it based Dumas’s
standing.
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3. Interference with Clay’s Constitutional Right to Parent
Clay asserts that conferring standing on Dumas to intervene in the pending
SAPCR under section 102.003(a)(9) or (11) violates Clay’s constitutional right to
parent Ann because there is no requirement that Dumas prove substantial
impairment. See generally Troxel v. Granville, 530 U.S. 57, 60, 72–73 (2000) (plurality op.)
(holding trial court’s order granting grandparent visitation rights to their deceased
son’s daughters over mother’s objection unconstitutionally infringed on mother’s
fundamental right to make decisions regarding daughters’ care, custody, and control).
Clay’s argument has been rejected by the Texas Supreme Court:
Parental rights are fundamental, but neither the Texas Family Code nor
the Constitution treats them as plenary and unchecked. The Family
Code [in section 102.003(a)(9)] recognizes that a narrow class of
nonparents, who have served in a parent-like role to a child over an
extended period of time, may come to court and seek to preserve that
relationship, over a parent’s objections. We hold that Grandparents
[who filed a SAPCR petition to modify parents’ conservatorship] fall
into that class, although we express no opinion on whether
Grandparents are entitled to conservatorship or visitation rights with
respect to [their granddaughter].
H.S., 550 S.W.3d at 154 & n.3, 163. Similarly, our conclusion that Dumas has shown
by a preponderance that he has standing to intervene under the narrow confines of
section 102.003(a)(9) or (11) does not unconstitutionally interfere with Clay’s right to
parent. And we express no opinion on whether Dumas is entitled to conservatorship.
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IV. CONCLUSION
Dumas showed by at least a preponderance that he had standing under section
102.003(a)(9) and (11) to intervene in the pending SAPCR. The trial court’s denial of
Clay’s motion to strike Dumas’s intervention petition was not an abuse of discretion
and did not unconstitutionally interfere with Clay’s right to parent Ann. Accordingly,
we overrule issues three, four, and five and deny Clay’s petition in part as it relates to
Dumas. See Tex. R. App. P. 52.8(a).
But the Jacksons provided less than a preponderance of evidence that Clay’s
sole managing conservatorship would significantly impair Ann’s physical health or
emotional development. By failing to proffer satisfactory proof under section 102.004
(or under section 153.433(b) to the extent it is applicable to a standing determination),
the Jacksons did not meet their burden to establish their standing to intervene
requesting conservatorship, possession, and access, rendering the trial court’s denial of
Clay’s motion to strike their petition a clear abuse of discretion. Therefore, we sustain
Clay’s first and second issues. We conditionally grant Clay’s petition in part as it
relates to the Jacksons’ standing to intervene. See Tex. R. App. P. 52.8(c). We direct
the trial court (1) to vacate that portion of its November 20, 2018 order denying
Clay’s motion to strike the Jacksons’ petition to intervene and (2) to enter an order
granting this motion. We are confident the trial court will comply and we will issue
our writ only if the trial court does not. We vacate our December 18, 2018 order
staying the trial court proceedings. See Tex. R. App. P. 52.10(b).
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/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: February 12, 2019
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