In re Nelke

573 S.W.3d 917

IN RE Evelyn NELKE, Relator

No. 05-19-00050-CV

Court of Appeals of Texas, Dallas.

Opinion Filed April 5, 2019

Matthew Davis, Kelly Robb, Coker Legal, Frisco, TX, for Real party in interest.

Georganna L. Simpson, Georganna L. Simpson, P.C., Elizabeth Mary Johnson, Attorney at Law, Dallas, TX, John J. Pfister Jr., Pfister, Borserine & Associates PLLC, Frisco, TX, for Relator.

Before Justices Brown, Schenck, and Reichek

Opinion by Justice Schenck In this mandamus proceeding, relator Evelyn Nelke (Maternal Grandmother) seeks relief from the trial court’s November 29, 2018 temporary orders (Temporary Orders) in this suit affecting the parent–child relationship. After reviewing the parties' briefs and the mandamus record, we have determined Maternal Grandmother is entitled to partial relief from the Temporary Orders. We therefore conditionally grant the writ in part and deny it in part.

BACKGROUND

Real party in interest Mother, Father, and Older Child¹ lived with real party in interest Paternal Grandmother for about a year. In February 2018, Father committed suicide, and Older Child and Mother, pregnant with Younger Child, moved out of Paternal Grandmother’s home and into Maternal Grandmother’s home.

On March 23, 2018, Paternal Grandmother filed an original petition in suit affecting the parent–child relationship (SAPCR) regarding Older Child. That same month, Child Protective Services (CPS) received a referral regarding Older Child.

In July 2018, Younger Child was born, and about that time, CPS received a referral regarding Younger Child. Concerned about allegations of Mother’s drug use, CPS conducted an investigation, during which Mother tested positive for drug use. Mother agreed to a CPS parent–child safety placement, which placed both children with Maternal Grandmother and required that Mother move out of Maternal Grandmother’s home and have only supervised visitation with the children.

On July 12, 2018, Maternal Grandmother filed a petition to intervene in Paternal Grandmother’s SAPCR regarding Older Child and filed an original SAPCR regarding Younger Child.² In her original petition, Maternal Grandmother sought to be named the sole managing conservator of Younger Child. On July 24, 2018, Paternal Grandmother nonsuited her SAPCR regarding Older Child.³ On September 14, 2018, Paternal Grandmother petitioned to intervene in Maternal Grandmother’s original SAPCR regarding Younger Child, seeking conservatorship of, possession of, and access to Younger Child.

On November 29, 2018, the respondent trial court judge held a temporary orders hearing, at the conclusion of which the trial court ruled that Paternal Grandmother would have some access and possession and be appointed a possessory conservator "because the elements of [family code section] 102.004(a)(1) were met." That same day, the trial court signed the Temporary Orders, which appointed Maternal Grandmother as managing conservator and Mother and Paternal Grandmother as possessory conservators, granted Paternal Grandmother an expanded standard possession schedule, granted Mother supervised access at agreed times, and provided for health insurance and medical support of Younger Child. The trial court set trial on the SAPCR regarding Younger Child for March 7, 2019.

On January 14, 2019, Maternal Grandmother filed this petition for writ of mandamus and a motion for emergency relief requesting this Court stay the underlying proceedings pending this Court’s ruling on her petition for writ of mandamus. By order dated January 18, 2019, this Court granted Maternal Grandmother’s motion for emergency relief, stayed the underlying proceedings, stayed the Temporary Orders, and requested that the real parties in interest respond by February 1, 2019. Only Paternal Grandmother responded.

In her petition for writ of mandamus, Maternal Grandmother raises two issues. First, she challenges Paternal Grandmother’s standing to file a petition to intervene in Maternal Grandmother’s pending original SAPCR regarding Younger Child. Second, Maternal Grandmother argues the trial court abused its discretion in awarding Paternal Grandmother possession of and access to Younger Child.

AVAILABILITY OF MANDAMUS REVIEW

Mandamus is an extraordinary remedy. See In re Sw. Bell Tel. Co. , 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will ordinarily issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. See In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). In the context of temporary orders affecting possession of and access to a child, the supreme court has held that a trial court abuses its discretion, warranting mandamus relief, if it grants possession of or access to a grandparent without proof sufficient to overcome the presumption that a parent acts in the child’s best interest by proving that denial of the grandparent’s possession of or access to the child would significantly impair the child’s physical health or emotional well-being. See In re Scheller , 325 S.W.3d 640, 646 (Tex. 2010) (orig. proceeding) (per curiam).

DISCUSSION

I. Paternal Grandmother’s Standing

As a preliminary matter, we address Paternal Grandmother’s argument that we should not address Maternal Grandmother’s challenge to her standing on mandamus because Maternal Grandmother did not object to her standing in the trial court.⁴ However, subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. See In re D.S. , 555 S.W.3d 301, 314 (Tex. App.—Dallas 2018, pet. filed). Accordingly, we will address whether the trial court erred in concluding at the temporary orders hearing that Paternal Grandmother had standing.

Because the family code by its terms confers standing on parties, we begin by reviewing whether a party has established standing within the framework of that code. See State v. Naylor , 466 S.W.3d 783, 791 (Tex. 2015) (requiring mandamus petitioner intervening after final judgment to first establish its standing to present its argument on appeal); see also In re Derzapf , 219 S.W.3d 327, 331–33 (Tex. 2007) (orig. proceeding) (per curiam) (analyzing whether party established standing as set forth in section 153.432 of family code ). A grandparent may file an original suit requesting managing conservatorship under section 102.004(a), intervene in a pending suit under section 102.004(b), or file a suit to seek possession or access under section 153.432. TEX. FAM. CODE ANN. §§ 102.004(a), (b) ; 153.432.

Here, the petition in intervention maintains that Paternal Grandmother has standing to intervene under section 102.004 of the family code because (1) she is related to the child within the third degree of consanguinity and (2) "the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development." Further, the trial judge stated on the record at the November 29, 2018 hearing that she was granting Paternal Grandmother custody, possession, and access under section 102.004(a)(1), not under section 153.433(b), and that she believes the elements of 102.004(a)(1) were met.

Section 102.004(a)(1) provides:

(a) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development....

FAM. § 102.004(a)(1).

Subsection (a), however, applies by its plain terms only to the filing of an "original suit," which Paternal Grandmother did not file in connection with Younger Child; instead she filed a petition to intervene in Maternal Grandmother’s suit. See id. Paternal Grandmother could not, therefore, establish standing under section 102.004(a)(1) because it does not apply to an intervention. In re E.C. , No. 05-17-00723-CV, 2017 WL 6505867, at *4 (Tex. App.—Dallas Dec. 20, 2017, no pet.) (mem. op.) (foster parent’s standing to intervene governed by section 102.004(b) regardless of standing to bring original suit).

Accordingly, we cannot sustain the trial court’s jurisdictional conclusion on the grounds asserted and found below. That does not end our inquiry, of course. Because standing is a component of subject matter jurisdiction and a question of law, we can conclude the trial court did not err in concluding Paternal Grandmother had standing on a subsection other than the one referenced by the trial court at the hearing. See In re M.P.B. , 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). The trial court could have relied on section 102.004(b) in concluding Paternal Grandmother had standing to sue. See FAM. § 102.004(b). Section 102.004(b) applies to any person who seeks to intervene in a pending suit even if that person may have had standing to bring an original suit. See In re E.C. , 2017 WL 6505867, at *4. Section 102.004(b) provides that

the court may grant a grandparent or other person, subject to the requirements of Subsection (b-1) if applicable,⁵ deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.

FAM. § 102.004(b).

Maternal Grandmother urges that Paternal Grandmother could not establish the first requirement for standing under section 102.004(b) because Paternal Grandmother did not allege in her petition that she had substantial past contact with the child, and the evidence at the hearing showed sh...