In re Interest of H.S.

550 S.W.3d 151

IN the INTEREST OF H.S., a Minor Child

No. 16–0715

Supreme Court of Texas.

Argued January 10, 2018

OPINION DELIVERED: June 15, 2018

Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, Charla F. Moore, Moore Family Law Firm, Arlington, TX, Katherine Marie Allen, Allen & Weaver, P.C., Euless, TX, for Petitioners C.M. and S.M.

Kirk L. Pittard, Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston, TX, Dava Greenberg–Spindler, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX, Kaye Lynne Boll, Law Office of Kaye Lynne Bol, North Richland Hills, TX, Sarraine S. Krause, Law Office Of Sarraine S. Krause, Forth Worth, TX, for Respondents A.G. and B.A.S.

Deterrean S. Gamble, John B. Worley, Rande K. Herrell, Office of the Attorney General, Austin, TX, Jonathan Fox, Office of the Attorney General, Arlington, TX, for Office of the Attorney General.

Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Boyd, and Justice Devine joined.

Heather¹ lived in her maternal grandparents' home for the first 23 months of her life. During the last eight of those months, her grandparents were her primary caretakers and providers. The issue here is whether the grandparents, having continuously engaged in that parent-like role on a day-to-day basis, had standing to pursue a suit affecting the parent-child relationship (SAPCR) under the Texas statute conferring such standing on nonparents who have had "actual care, control, and possession of the child for at least six months." TEX. FAM. CODE § 102.003(a)(9). Both the trial court and the court of appeals concluded the grandparents lacked standing. We disagree. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.

I. BACKGROUND

Immediately upon Heather's birth in January 2013, she and her mother moved into her maternal grandparents' home. Heather's parents were not married and did not live together. On August 29, 2013, the trial court entered an order in a pending SAPCR appointing Heather's parents joint managing conservators, with Mother having the exclusive right to designate Heather's primary residence. Broadly speaking, the order granted Father possession of Heather on alternate weekends and various holidays.

From the time of her birth until December 19, 2014, Heather primarily lived in the home of her maternal grandmother and step-grandfather (Grandparents). Mother, who struggled with alcohol addiction, also resided at Grandparents' home from August 29, 2013 until March 30, 2014.² On March 30, 2014, Mother moved to a sober-living facility called Oxford House to address her addiction issues. Mother, Father, and Grandparents agreed that Heather would continue to live with Grandparents while Mother was in recovery.

Mother testified that she did not have a specific time frame in mind for her stay at Oxford, though she initially anticipated being there no more than three months. She also testified that, while living at Oxford, she would go to Grandparents' house in the evenings and would "have dinner with [Heather], bathe her, put her to bed, spend time with her." The record is not clear about the frequency of these visits, although the trial court found that Mother saw Heather "on a regular basis." Mother also sometimes picked Heather up from daycare when she was able to get a car. Father's exercise of his possession rights when Mother moved to Oxford was "sporadic" for the first few months or so, after which Heather stayed with him approximately every other weekend, sometimes commencing on Thursday.

After Mother moved to Oxford, Grandparents directed Heather's day-to-day activities and took care of her daily needs; provided her with a home, food, clothing, and shelter; and paid for her daycare. They necessarily decided when Heather would start her day, what she would eat for meals, what clothing she would wear, what activities she would participate in, whether she would be restricted from watching television or encouraged to play outside. In short, they managed and controlled her everyday activities. They also ensured that her nutritional, physical, emotional, and psychological needs were addressed, while providing her with a nurturing home. When she awoke in the middle of the night, they were there to comfort her, and when she scraped her knee, she could depend on them to stop the bleeding. Indeed, Father agreed, and the trial court found, that Grandparents were Heather's "primary caregivers" from March to October 2014.

Grandparents also took Heather to the doctor or to urgent care when necessary, although Mother and Father were also involved in medical decisions. The trial court found that both Mother and Grandmother made doctor's appointments for Heather, and Grandmother testified that Mother attended some, but not all, of those appointments. Mother provided authorization for Grandparents to take Heather to a specific doctor's office and to obtain emergency treatment. Father also testified that he authorized Grandparents to obtain necessary emergency treatment for Heather but that, on a few occasions, a medical provider obtained his consent over the phone to treat Heather. The parties generally agree, and the trial court found, that Grandparents kept Mother and Father informed about Heather's daily activities and medical needs and "sought input" from them on decisions that needed to be made about her.

Mother and Father both testified that they intended the arrangement with Grandparents to be temporary while Mother was in recovery. Mother also testified, and the trial court found, that she did not intend to relinquish her care and control of Heather to Grandparents. However, by early October 2014, Mother remained at Oxford, while Heather still lived with Grandparents. On October 6, Grandparents filed a petition to modify the SAPCR order requesting that they be appointed Heather's managing conservators with the right to designate her primary residence.³ They alleged that they had had actual care, control, and possession of Heather for six months and thus had standing to sue as nonparents under Family Code section 102.003(a)(9). Father filed a counterpetition to modify the possession order and filed a plea to the jurisdiction seeking dismissal of Grandparents' petition for lack of standing.

In January 2015, the associate judge entered temporary orders appointing Father "primary" managing conservator and granting Mother supervised visitation.⁴ The trial court held a hearing on Father's plea to the jurisdiction and granted the plea, dismissing Grandparents' petition. The trial court also entered an agreed order (as between Mother and Father) appointing Heather's parents joint managing conservators, granting Father the right to designate Heather's primary residence within Tarrant County, granting Mother possession of Heather "at times mutually agreed to in advance by the parties," and requiring Mother to pay child support. In its findings of fact and conclusions of law, the court determined that Grandparents did not establish that they had "actual care" or "actual control" over Heather for the six-month period preceding their petition filing.

Grandparents appealed. The court of appeals affirmed, holding that "standing under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child's parent is unfit or has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period." 552 S.W.3d 282, 289, 2016 WL 4040497 (Tex. App.—Fort Worth 2016) (mem. op.). We granted Grandparents' petition for review.

II. STANDING FRAMEWORK AND STANDARD OF REVIEW

The only issue presented is whether Grandparents had standing under the Family Code to file a SAPCR seeking conservatorship of Heather. With that in mind, we note the significance of the stage of the case before us. Generally, standing involves a threshold determination of whether a plaintiff has a sufficient "justiciable interest" in the suit's outcome to be entitled to a judicial determination. Austin Nursing Ctr. v. Lovato , 171 S.W.3d 845, 848–49 (Tex. 2005). "Without standing, a court lacks subject matter jurisdiction" over the case, and the merits of the plaintiff's claims thus cannot be litigated or decided. Id. at 849 ; see also Brown v. Todd , 53 S.W.3d 297, 305 (Tex. 2001) ("The standing doctrine identifies those suits appropriate for judicial resolution."). Here, the merits of Grandparents' claims—that is, whether they should be appointed Heather's managing conservators with the right to designate her primary residence—have not yet been considered by any court and are not before us. See In re Smith , 260 S.W.3d 568, 573 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (explaining, in a suit involving grandparent access, that "whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit"). Thus, this case is not about whether Grandparents will prevail in their suit; it is about whether they may bring it in the first place. And without standing, Grandparents are precluded not only from seeking custody of Heather but also from seeking any type of visitation with her at all.

Standing, like other issues implicating a court's subject matter jurisdiction, is a question of law that we review de novo. Tex. Dep't of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 646 (Tex. 2004) ; Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). In evaluating standing, we construe the pleadings in the plaintiff's favor, but we also consider relevant evidence offered by the parties. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000) ; Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). When the trial court issues findings of fact, as it did here, we defer to those unchallenged findings that...