Opinion
No. 05-15-01479-CV
03-21-2017
IN THE INTEREST OF J.R.W., A CHILD
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 469-56410-2010
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
Jennifer Lynn Brattain ("Mother"), mother of J.R.W., appeals from a final order appointing herself and J.R.W.'s paternal grandmother Karan Windham ("Grandmother") as joint managing conservators. In her first issue, Mother complains the trial court erred by allowing Grandmother to intervene to seek access to and conservatorship of J.R.W. because she lacked standing. In her second issue, Mother argues the trial court erred by failing to apply a significant-impairment standard to award access to and conservatorship of J.R.W. to Grandmother, by awarding access to and conservatorship of J.R.W. in the absence of sufficient evidence, and by not including required language in the order. In her third and final issue, Mother contends the trial court violated her due-process rights by depriving Mother of the opportunity to present testimony and examine witnesses. Because we conclude the trial court failed to include statutorily required findings in its final judgment, we reverse and remand to the trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Jeremy Ramond Windham ("Father") have one child, J.R.W., born in May 2009. When J.R.W. was only weeks old, Mother and Father separated. In December 2010, Father filed an original petition in suit affecting the parent-child relationship, seeking appointment of himself and Mother as joint managing conservators. Mother responded with a general denial, and by January 2011, the trial court signed orders allowing Father visitation to be supervised by Grandmother. On August 22, 2013, Grandmother filed her petition in intervention. On January 10, 2014, Mother filed a motion to strike Grandmother's intervention, which the trial court denied on May 1, 2014. After a hearing on temporary orders conducted on January 16, 2014, at which Mother and Grandmother both argued Father had committed family violence and suffered from drug addiction and mental illness, the trial court issued temporary orders appointing Mother as sole managing conservator and awarding Grandmother monthly visitation with J.R.W. at a neutral location.
Mother, Father, and Grandmother proceeded to a bench trial on March 17, 2015, and the trial court signed a final order in suit affecting the parent-child relationship on September 3, 2015, in which the trial court appointed both Mother and Grandmother as joint managing conservators with Mother having the exclusive right to designate the primary residence of J.R.W. Mother filed a motion for new trial in which she urged, among other things, that the trial court erred in allowing Grandmother's intervention and that the evidence was legally and factually insufficient to support the trial court's judgment. After conducting a hearing, the trial court denied Mother's motion, at which point Mother appealed this case.
GRANDMOTHER'S STANDING
A grandparent may file an original suit requesting managing conservatorship under section 102.004(a), intervene in a pending suit under 102.004(b), or file a suit to seek possession or access under section 153.432. See TEX. FAM. CODE ANN. §§ 102.004, 153.432 (West 2016). The question of who has standing to seek managing conservatorship is a threshold issue. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). Standing is a question of law as it is a component of subject-matter jurisdiction. See id. When, as here, the trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. Id. We review the trial court's implied factual findings for legal and factual sufficiency, and we review the trial court's implied legal conclusions de novo. Id.
Section 102.004 provides for standing for grandparent or other person as follows.
(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; or
(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
(b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person 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 subchapter 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.
(c) Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.
Section 153.432 provides for a grandparent's suit for possession or access as follows.
(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
(c) In a suit described by Subsection (a), the person filing the suit must execute and attach an affidavit on knowledge or belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would significantly impair the child's physical health or emotional well-being. The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under Section 153.433.
Additionally, section 102.003 provides general standing to file suit, but neither Grandmother nor Mother argues this section applies to the record here. TEX. FAM. CODE ANN. § 102.003 (West 2016).
Mother argues that Grandmother failed to establish standing to intervene in this case. She contends that the family code requires a grandparent seeking access to or conservatorship of a grandchild to show that the child's physical or emotional well-being will be "significantly impair[ed]" unless the grandparent's requested relief is granted. Mother frames her argument in large part on sections 102.004(b) and 153.432(c). FAM. §§ 102.004, 153.432. Section 102.004(b) permits a court to allow a grandparent to intervene so long as there is satisfactory proof that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the grandchild's physical health or emotional development. Id. § 102.004(b). Section 153.432(c) requires a grandparent filing a suit for possession and access to a grandchild to execute and attach a supporting affidavit alleging that denial of possession of or access to the grandchild by the grandparent would significantly impair the child's physical health or emotional well-being. Id. § 153.432. I. Grandmother's Standing through Consent
Grandmother alleges Mother and Father consented to her intervention. She points to section 102.004(a)(2) that permits a grandparent to file an original suit requesting managing conservatorship if there is satisfactory proof to the court that the parents or managing conservator consented to the suit. FAM. § 102.004(a)(2). Grandmother argues first that we may presume Mother's consent from the fact that she failed to provide transcripts from all the hearings conducted in this case. She points to four pretrial hearings that are noted on the court's docket, but for which Mother has not provided transcripts. Grandmother next argues Mother actually consented to her standing by consenting to temporary orders providing Grandmother with court-ordered access to J.R.W. She also points to Mother's later pleadings in which she stated that "[t]he Court has jurisdiction of this case and of all the parties . . . ." and requested Grandmother be "appointed as Intervenor with limited supervised visitation rights for the child." Finally, Grandmother argues Father expressly or implied consented to her intervention because he actively participated in the lawsuit and filed pleadings referring to Grandmother as an intervenor without objecting to her standing.
In response to Grandmother's original and amended petitions to intervene, Mother filed a pro se motion to strike Grandmother's invention in which she challenged Grandmother's standing to seek either access or conservatorship. Mother made repeated efforts to be heard on her motion to strike at the trial court's hearing on January 2014 on temporary orders, but the trial court informed Mother she would have to set a separate hearing for her motion to strike. At Mother's requested hearing on her motion to strike, she again argued that Grandmother lacked standing to intervene. Mother raised the issue of Grandmother's standing at trial and once more in her motion for new trial. Grandmother fails to point to authority from either the supreme court or this Court in support of her argument that we might imply consent in these circumstances, and we find the record sufficiently developed and clear to reject it. Accordingly, we reject Grandmother's arguments regarding consent and turn to Mother's arguments. II. Timing of Events to Establish Standing
Mother complains that many of Grandmother's allegations in her affidavit and amended affidavit complained of events that took place after her original petition to intervene was filed and argues they should not be considered in determining whether there is significant impairment so as to support standing. In essence, Mother asks us to ignore the post-intervention record as it relates to standing at the time judgment was entered. She urges us to reverse on the basis of an alleged error that Grandmother could have corrected by dismissing and later refiling a petition and affidavit before the entry of judgment resulted in an improper judgment.
Mother relies our decision in In re M.P.B., in which we noted that standing is determined at the time suit is filed in the trial court. 257 S.W.3d at 808. In that case, the grandmother relied on section 102.003(a)(9) to confer standing. TEX. FAM. CODE ANN. § 102.003(a)(9) (West 2016). Section 102.003(a)(9) permits a person, other than a foster parent, who has actual care, control, and possession of the child for at least six months not more than 90 days preceding the date of the filing of the petition to file an original suit. Id. Thus, the statute providing standing in In re M.P.B. required evidence of actual care, control, and possession that took place prior to the filing of the petition putting the focus of the standing inquiry directly on the period of time immediately preceding the filing. Id.
In contrast, in her amended petitions and response to Mother's motion to strike, Grandmother claimed standing under sections 102.004, 153.432, and 153.433, the substance of which we will detail below. Her first amended petition, as did her supporting affidavits, alleged appointing Mother and Father as joint managing conservators would cause significant impairment to the child's physical health or emotional well-being. The question on appeal is whether proof in support of that legal conclusion can be considered assuming, as Mother urges, it was developed after the intervention but prior to the judgment.
Mother argues that pursuant to section 153.432, Grandmother's original petition was required to include and failed to reference the appropriate "significant-impairment standard." While we note that Grandmother's original petition did fail to state this standard, both the Grandmother's first amended petition and her second supplemental petition stated that "appointment of the parents as joint managing conservators . . . would significantly impair the child's physical health or emotional development." See TEX. R. CIV. P. 65 (substituted instrument takes place of original).
When standing has been conferred by statute, the statute itself should serve as the proper framework for a standing analysis. See In re K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.], no pet.) (interpreting what is necessary for there to be "satisfactory proof to the court" in the context of section 102.004(a)). Neither of the statutes cited in Grandmother's pleadings require all the underlying facts to support standing to be proven at the time the original petition was filed. TEX. FAM. CODE ANN. §§ 102.004, 153.433 (West 2016). Moreover, whatever the state of the record might have been at that moment, our reversible error analysis looks to whether the appellant has suffered the "rendition of an improper judgment." See TEX. R. APP. P. 44.1(a)(2). Accordingly, we will consider the record at the time of the judgment. III. Sufficiency of Proof to Establish Grandmother's Standing
Moving past the question of the scope of the relevant record inquiry, Grandmother had the burden of establishing her standing below. See Orix Capital Markets, LLC v. Am. Realty Trust, Inc., 356 S.W.3d 748, 752 (Tex. App.—Dallas 2011, pet. denied).
Mother complains of the following alleged deficiencies in Grandmother's supporting evidence: (1) Grandmother failed to submit a supporting affidavit required by section 153.432 when she filed her original petition to intervene, (2) the affidavit attached to Grandmother's first amended petition to intervene failed to set forth facts to support the claim that denial of possession of or access to the child by Grandmother would significantly harm J.R.W.'s physical health or emotional well-being, (3) the amended affidavit and other documents Grandmother provided were insufficient to establish her standing, and (4) Grandmother's second supplemental petition to intervene failed to include any affidavit or allegations in support of her requests for access or conservatorship.
Grandmother asserts "the Grandparent Access statute," which we construe to mean section 153.433, is not applicable in this case because she was awarded possession as a conservator rather than mere access as permitted in that actual section. See FAM. § 153.433 (permitting court to order possession of or access to a grandchild under certain circumstances). However, Grandmother's attorney represented to the trial judge at the hearing on Mother's motion to strike that Grandmother was not seeking parental rights but only possession of or access to J.R.W. pursuant to section 153.433.
Section 153.432 of the family code permits a biological or adoptive grandparent to request possession of or access to a grandchild by filing an original suit or a suit for modification. FAM. § 153.432(a). The statute requires a grandparent filing suit to "execute and attach an affidavit on knowledge or belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would significantly impair the child's physical health or emotional well-being." FAM. § 153.432(c). The statute also requires the court to deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under section 153.433. Id. § 153.432. Section 153.433 permits the court to order reasonable possession of or access to a grandchild by a grandparent if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and
(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
Id. § 153.433(a).(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B) has been found by a court to be incompetent;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child.
Grandmother's First Amended Petition in Intervention filed December 17, 2013, included a supporting affidavit that alleged the denial of access to or possession of J.R.W. by Grandmother would significantly impair his physical health or emotional well-being. The affidavit included the following facts to support this allegation.
• Mother had "relied heavily upon [Grandmother] for raising [J.R.W.] from the day he was born."
• Mother depended on Grandmother to supply J.R.W. diapers and formula when he was an infant.
• Grandmother continued to help Mother with her expenses after she and Father separated.
• J.R.W. had formed a "very strong bond" with Grandmother and her husband ("Grandfather") when Grandmother acted as a primary child care provider in the summer and as a secondary child care provider when Mother worked late.
• Grandmother's home "was a refuge for [J.R.W.] to play and be on a regular schedule."
• J.R.W.'s association with her and Grandfather would maintain his ties with his extended family.
• Mother intended to exclude Grandmother and Grandfather from access to J.R.W.
• Father lacked the ability to make parenting decisions concerning J.R.W.
• Father's problems with drugs and mental illness were "so bad it is paramount that [Mother] and [Grandmother] work together in the best interest of [J.R.W.]"
Grandmother later filed an amended affidavit in which she alleged the following additional facts.
• Mother had filed multiple false statements about Grandmother's behavior and character.
• Mother had made accusations of child abuse and molestation that had been "ruled out" by child protective agencies.
• Mother had accused a court-appointed visitation supervisor of allowing Father to molest J.R.W.
• Mother and Father "have demonstrated unstable psychological behavior dangerous to the child," specifically Father's struggles with substance abuse and depression and Mother's pattern of "blow-ups and mood swings" each time she denied a court-ordered visitation.
• Mother repeatedly denied access to J.R.W. for several months before Grandmother filed her petition and later after she had agreed to grant Grandmother access at a hearing in January 2014.
The record reflects and Mother does not challenge that neither her nor Father's parental rights were ever terminated or that Grandmother is the parent of Father who, as of the end of the trial conducted March 17, 2015, had no actual or court-ordered possession of or access to J.R.W. The evidence detailed above supports the trial court's implied finding that denial of possession of or access to J.R.W. by Grandmother would significantly impair his physical health or emotional well-being. See In re M.P.B., 257 S.W.3d at 808 (concluding record contained legally and factually sufficient evidence to support implied findings to support standing under section 102.003 of the family code). Having determined Grandmother had standing pursuant to section 153.432, we need not discuss whether she had standing under section 102.004. See TEX. R. APP. P. 47.1. We overrule Mother's first issue.
GRANDMOTHER'S APPOINTMENT AS JOINT MANAGING CONSERVATOR OF J.R.W.
In her second issue, Mother argues the trial court abused its discretion in awarding Grandmother joint managing conservatorship of J.R.W. She argues the trial court erroneously failed to consider or make any findings regarding "the significant-impairment standard" and that the trial court instead only stated it would rule based on what was in the best interest of J.R.W. Mother relies on sections 102.004, 153.432, and 153.433 of the family code, which require the trial court make a finding of significant impairment of the child's physical health or emotional development either from the child's present circumstances, "appointment of a parent as a sole managing conservator or both parents as joint managing conservators," or from denial of possession or access to the child by a petitioning grandparent. See FAM. §§ 102.004, 153.432, 153.433. Grandmother responds that she was not required to prove significant impairment because she did not seek to replace Mother as managing conservator but instead sought to share joint managing conservatorship with her. She argues that under the supreme court opinion of Brook v. Brook, the test for the appointment of a parent and nonparent as joint managing conservators is whether the appointment would be in the best interest of the child. 881 S.W.2d 297, 299 (Tex. 1994).
As for Mother's reliance on sections 102.004, we note that section 102.004 governs standing, not award of conservatorship, possession, or access, and thus we find it inapplicable. See FAM. § 102.004.
In Brook v. Brook, the supreme court examined a jury's decision to appoint a mother and her parents—the maternal grandparents—joint managing conservators of a child. Id. at 298. The jury found that such appointment was in the best interest of the child. Id. The father appealed, arguing that the jury should have been required to find that the appointment of either himself or the mother as sole managing conservator or together as joint managing conservators would significantly impair the child's physical health and emotional development. Id. In making this argument, the father relied on a section of the family code that provided as follows.
A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.TEX. FAM. CODE ANN. § 14.01(b)(1) (West Supp. 1994) (recodified at § 153.131). The supreme court acknowledged that before a nonparent could be appointed as sole managing conservator or two nonparents appointed as joint managing conservators, "a higher standard must be satisfied, requiring proof that appointment of the parent or parents would significantly impair the child's health or development." Brook, 881 S.W.2d at 298. But the Brook court held that the statute "contemplate[d] a situation in which neither of the parents are awarded custody" and that "the test for the appointment of a parent and nonparent as joint managing conservators is a best interest of the child test." Id. at 299.
Since the supreme court decided Brook v. Brook, the United States Supreme Court has decided the case of Troxel v. Granville, 530 U.S. 57 (2000), in which a mother appealed from an order granting her child's paternal grandparents visitation, challenging the constitutionality of a state law permitting "[a]ny person" to petition for visitation rights "at any time," and authorizing the court to grant such visitation rights whenever "visitation may serve the best interest of the child." The Troxel court held that parents have a liberty interest in the care, custody, and control of their children and that "there is a presumption that fit parents act in the best interests of their children." Id. at 65, 68. The Troxel court was troubled by the facts that "there were no allegations or findings that the mother was an unfit parent" and that the trial court gave no special weight at all to the mother's determination of her daughter's best interests and instead presumed the grandparents' request for visitation should be granted unless the children would be impacted adversely. Id. at 68-69. The Troxel court held that the statute at issue in that case as applied violated the Fourteenth Amendment, concluding that the visitation order was an unconstitutional infringement on the mother's fundamental right to make decisions concerning the care, custody, and control of her children. Id. at 72.
Although the Troxel court declined to decide whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation, the Texas Legislature made several amendments to the family code in 2005. See id. at 73 ("Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation."); In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) ("As amended, section 153.433 now echoes the United States Supreme Court's plurality opinion in Troxel, 530 U.S. at 68, 120 S.Ct. 2054, that a trial court must presume that a fit parent acts in his or her child's best interest."). However, the legislature did not similarly amend the language of the statute interpreted in Brook v. Brook. See TEX. FAM. CODE ANN. § 153.131 (West 2016) (" . . . unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child."). Nor has the supreme court vacated or disapproved of this holding.
Pointing to Troxel, and noting that Grandmother was awarded joint conservatorship, rather than mere access, Mother argues that Brook has been factually undermined. She further contends that the Due Process Clause would require Grandmother to overcome the presumption that a parent acts in the best interest of the child by proving that appointment of the parent or parents would significantly impair the child's physical health or emotional development.
We will not address whether the best-interest standard in Brook has been abrogated by the holdings in Troxel or whether the evidence is sufficient to establish appointment of the parent or parents would significantly impair the child's physical health or emotional development. Mother also argues that the order does not comply with section 153.433 because it does not include findings mandated by the statute. We agree. As detailed below, the trial court's final order fails to make mandatory findings that may materially affect this debate.
When a trial court renders an order on the merits that grants possession of or access to a child by a grandparent over a parent's objections, section 153.433 requires that order to state with specificity that
The trial court is not required to make such findings with respect to an interlocutory standing decision under section 153.432(c). See FAM. § 153.432(c).
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;
(2) the grandparent requesting possession of or access to the child has overcome the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and
(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
Id. § 153.433(b).(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B) has been found by a court to be incompetent;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child.
Grandmother urges that section 153.433 is irrelevant and any issue concerning it is now moot because she was awarded possession as a conservator rather than through grandparent access. We disagree. The plain language of the statute applies to "[a]n order granting possession of . . . a child by a grandparent that is rendered over a parent's objections," as is the case here. See id. § 153.433. Grandmother also argues the totality of the evidence supports an implied finding that appointing Mother as sole managing conservator would significant impair J.R.W.'s physical health or emotional development, pointing to evidence that the trial court might have relied on to draw that conclusion.
Even assuming the evidence Grandmother highlights would be sufficient to support the trial court's judgment, section 153.433 requires that the order "must state" certain findings that both parties acknowledge are missing from the final judgment. See id. § 153.433(b). The word "must" is generally recognized as mandatory, creating a duty or obligation. TEX. GOV'T CODE ANN. § 311.016(3) (West 2013). Accordingly, we do not believe that we can conclude section 153.433 permits us to deem findings. Instead, we conclude section 153.433 imposes such a duty and obligation on the trial court to include certain findings in an order granting possession of or access to a child by a grandparent over a parent's objections. We further conclude the trial court improperly failed to include these findings in its final judgment.
We sustain Mother's second issue.
Because we sustain Mother's second issue, we need not address her arguments regarding alleged violations of her due-process rights. TEX. R. APP. P. 47.1.
CONCLUSION
We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 151479F.P05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 469-56410-2010.
Opinion delivered by Justice Schenck, Justices Bridges and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Jennifer Lynn Brattain recover her costs of this appeal from appellee Karan Windham. Judgment entered this 21st day of March, 2017.