In re N.A.

1

IN RE N.A.

No. 04-24-00145-CV

Court of Appeals of Texas, Fourth District, San Antonio

October 30, 2024

Original Proceeding ^[1]

Sitting: Irene Rios, Justice Beth Watkins, Justice Lori Massey Brissette, Justice

MEMORANDUM OPINION

LORI MASSEY BRISSETTE, JUSTICE

On February 29, 2024, Relator filed a petition for writ of mandamus challenging the trial court's temporary orders in this suit affecting the parent-child relationship. On the record before us, we hold the trial court abused its discretion in finding the real party in interest J.K. is a parent of the child at issue and conditionally grant the petition for writ of mandamus.

Background

From 2020 to 2023, N.A. and J.K. were involved in a romantic relationship. They never married, but they lived together with J.K.'s two children from a previous relationship, J and M.^[2] In December of 2021, N.A. gave birth to a child, E.K.A.-K., conceived using the same sperm donor used for the pregnancies that resulted in the births of J. and M., making the three children biological half-siblings. The child, E.K.A.-K., was given a hyphenated last name using the surnames of both women and the two women and three children lived together as a family unit.

N.A. and J.K. ended their relationship in August of 2023. In October 2023, when E.K.A.-K. was almost twenty-two months old, N.A. moved out of the shared home, taking E.K.A.-K. with her. On October 30, 2023, J.K. filed an original suit affecting the parent-child relationship (SAPCR) which alleged she had standing to seek conservatorship or possession of E.K.A.-K. because she "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." See Tex. Fam. Code Ann. § 102.003(a)(9). J.K. did not assert standing as a parent under section 102.003(a)(1) of the Texas Family Code or seek a determination of parentage under Chapter 160 of the Texas Family Code, but she did ask the trial court to appoint both parties as joint managing conservators and to enter temporary orders. N.A. responded by filing a plea to the jurisdiction, which argued J.K. lacked standing to bring the suit and had failed to allege that N.A. was an unfit parent.

On November 28, 2023, J.K. amended her SAPCR petition. Like her original petition, the amended petition again alleged only that she had standing under section 102.003(a)(9) of the Texas Family Code. However, her amended petition included a supporting affidavit that described herself as E.K.A.-K.'s "other mother" and "parent figure," referred to J.K.'s parents as E.K.A.-K's "grandparents," and made similar assertions relating to the child's relationship with further extended family of J.K. The affidavit stated that N.A. and J.K. jointly decided to have a child together and that E.K.A.-K. was that child. N.A. filed special exceptions to the amended petition questioning whether J.K.'s claim was as a parent or non-parent.

On December 11, 2023, the trial court held a hearing on J.K.'s request for temporary orders but first heard arguments on N.A.'s special exceptions. In response, counsel for J.K. stated,

The issue of whether or not - what capacity we're bringing this suit - my client - and it's in her affidavit - she's not a parent. I didn't bring a standing claim that she's a parent. She is biologically not the parent of this child. . . .

. . . . The only standing I have is [Texas Family Code section 102.003(a)(9)]. The trial court then denied the special exceptions and moved forward to the evidence on temporary orders.

After hearing testimony from J.K., N.A., and the children's nanny, the trial court rendered temporary orders in which it found that both N.A. and J.K. are the parents of E.K.A.-K. because they both "acted with the intent to parent." The trial court named both N.A. and J.K. as joint managing conservators, awarded J.K. visitation and ordered her to pay child support to N.A., appointed an amicus attorney for the child, ordered a psychological evaluation, and enjoined N.A. from changing the name of the child during the pendency of the proceeding.^[3] No other findings were made by the court. N.A. then filed this original proceeding.

Standard of Review

Mandamus is an extraordinary remedy that will generally issue only to correct a clear abuse of discretion where there is no adequate remedy by law. See, e.g., In re Davila, 510 S.W.3d 455, 457 (Tex. App.-San Antonio 2013, orig. proceeding). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion . . . ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

A litigant may properly file a petition for writ of mandamus to challenge temporary orders in a child custody case because such orders are interlocutory and not appealable. In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding); Little v Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding); In re Sanchez, 228 S.W.3d 214, 217 (Tex. App.-San Antonio 2007, orig. proceeding).

Mandamus may be appropriate when parties are in danger of permanently losing substantial rights. Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 843-44. It may also be appropriate when mandamus allows the court to give needed direction regarding the law and where it will spare litigants the time and money involved in improperly conducted proceedings. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).

Analysis

Prior to the temporary orders hearing, N.A. filed special exceptions to J.K.'s amended petition contending she did not have fair notice of whether J.K. was advancing rights as a parent or a non-parent and that she, therefore, could not determine the standard before the court or the evidence that would be relevant to it. In response, J.K.'s counsel clarified that she was not seeking standing as a parent and that she, in fact, was not the parent of this child. This comports with J.K.'s pleading which cites only Texas Family Code section 102.003(a)(9) in support for her claim of conservatorship, a statute which applies to non-parents seeking access to a child.^[4]

However J.K.'s counsel went on to state that J.K. had "acted as a parent" since the birth of the child and was seeking to be appointed joint managing conservator and to acquire "the rights and duties of a parent as set forth in 153.132." As well, in an affidavit attached to her amended petition, J.K. used terms like "parent" and "parent figure." When N.A. again sought to clarify whether J.K. was advancing rights as a parent or a non-parent, the trial court stated, "[T]he beauty of family litigation is that she doesn't have to commit before temporary orders." Special exceptions were then denied and the temporary orders hearing proceeded.

"Texas is a 'fair notice' state, which means that all parties are entitled to fair notice of a claim." In re M.G.N., 491 S.W.3d 386, 406 (Tex. App.-San Antonio 2016, pet. denied) (quoting In re Russell, 321 S.W.3d 846, 855 (Tex. App.-Fort Worth 2010, orig. proceeding [mand. denied])); see Tex. R. Civ. P. 45, 47. "The test of fair notice is whether an opposing attorney of reasonable competence, with the pleadings before him, can determine the nature of the controversy and the testimony probably relevant." City of Houston v. Howard, 786 S.W.2d 391, 393 (Tex. App.-Houston [14th Dist.] 1990, writ denied); see In re J.O., No. 04-19-00381-CV, 2019 WL 6719029, at *6 (Tex. App.-San Antonio, Dec. 11, 2019, orig. proceeding) (mem. op.) (holding fair notice was not provided in a custody matter where court went beyond the pleaded claim to terminate parental rights by also finalizing adoption of the children by third parties).

Texas courts provide more leeway in a custody case when it comes to pleading. In fact, this court quoted the Texas Supreme Court in Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) when it stated,

[W]e are of the view that a suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child. The courts are given wide discretion in such proceedings. Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. . . . [O]nce the child is brought under its jurisdiction by suit and pleading cast in terms of custody and control, it becomes the duty of the court in the exercise of its equitable powers to make proper disposition of all matters comprehended thereby in a manner supported by the evidence.

In re J.O., 2019 WL 6719029, at *6 (alterations in original) (emphasis added) (quoting Leithold, 413 S.W.2d at 701).

But even with such leeway, we must remember that the determination of parentage is of constitutional import. See Troxel v. Granville, 530 U.S. 57, 65-67 (2000) (plurality op.); In re C.J.C., 603 S.W.3d 804, 808 (Tex. 2020) (orig. proceeding). Notably, Leithold and other cases following it did not involve a lack of clarity around whether a parent's fundamental right to make decisions about the care, custody, and control of their child was being challenged by a parent or a non-parent. Leithold, 413 S.W.2d at 701 (reviewing modifications to a visitation order involving two biological parents); In re G.M., No. 04-13-00689, 2014 WL 1242662, at *3 (Tex. App.-San Antonio March 26, 2014, no pet.) (mem. op.) (applying Leithold to affirm a judgment removing a grandmother as managing conservator where the Department...