                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-20-00241-CV

                                      IN RE Joe Anthony ESPINOZA

                                       Original Mandamus Proceeding 1
Proceeding
Opinion by: Patricia O. Alvarez, Justice
Dissenting without opinion: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Beth Watkins, Justice

Delivered and Filed: August 5, 2020

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator is the father of the minor child J.A.E. and the real party in interest (“Meiji”) is the

child’s maternal grandmother. Meiji filed an original suit to terminate parental rights, for adoption

of J.A.E., and, alternatively, to be appointed managing conservator. Relator filed a motion to

dismiss for lack of jurisdiction. After the trial court denied relator’s motion to dismiss, relator

filed a petition for writ of mandamus to which Meiji responded.

                                               BACKGROUND

           On June 4, 2018, Meiji filed, in Williamson County, a petition to terminate the parental

rights of both relator and J.A.E.’s mother, and to adopt J.A.E. In the petition, Meiji stated she




1
 This proceeding arises out of Cause No. 1915-C, styled In the Interest of J.A.E., Jr., a Child, pending in the County
Court at Law, Kerr County, Texas. The Honorable Susan F. Harris signed the order at issue in this proceeding.
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anticipated the child’s mother would sign an affidavit of voluntary relinquishment. On October

25, 2018, the biological mother signed an affidavit of voluntary relinquishment of parental rights.

       On January 3, 2019, the Williamson County court granted Meiji’s uncontested motion to

transfer the case to Kerr County. On February 19, 2019, relator filed, in Kerr County, a motion to

dismiss for lack of jurisdiction. On March 12, 2019, Meiji filed an amended petition to terminate

the parental rights of both relator and J.A.E.’s mother, and to adopt J.A.E. However, as grounds

for termination, Meiji only pointed to the child’s mother’s voluntary relinquishment. She did not

state any grounds for terminating relator’s parental rights. Meiji also sought to adopt the child

(based on the mother’s relinquishment) or, in the alternative, primary custody of the child.

       During a March 25, 2019 hearing, the trial court considered both relator’s motion to dismiss

for lack of standing and Meiji’s motion to dismiss relator’s motion as moot based on her amended

petition. The trial court orally denied both motions. Without hearing any evidence regarding

standing, the trial court denied relator’s motion to dismiss and ruled Meiji had standing to file a

conservatorship, but not to file for adoption. The trial court then heard testimony from relator,

Meiji, and Dr. William Flynn on the issue of significant impairment because the court believed it

had the discretion to appoint an adoption evaluation and amicus attorney. At the close of evidence,

the trial court ruled that an amicus attorney had to be appointed. Following the hearing, the trial

court signed an order on January 17, 2020, denying relator’s motion to dismiss.

                                  STANDARD OF REVIEW

       Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of

discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding). “Due to the unique and compelling circumstances

presented in a SAPCR action, . . . mandamus relief is . . . an appropriate remedy for an order

denying a motion to dismiss for lack of standing in a SAPCR action.” In re Martin, 523 S.W.3d


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165, 169 (Tex. App.—Dallas 2017, orig. proceeding); see In re Herring, 221 S.W.3d 729, 730

(Tex. App.—San Antonio 2007, orig. proceeding) (“Because temporary orders in suits affecting

the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate

means to challenge them.”).

                                          DISCUSSION

       Although relator alleges Meiji sought standing under Family Code sections 102.003(9) and

102.004(a)(1), her original petition does not make any allegations under section 102.003(9), nor

does she argue in her response to the petition for writ of mandamus that she has standing under

that section. Instead, in her original petition, Meiji made various allegations that appear to raise

standing under section 102.004(a)(1), which provides 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
       ....

TEX. FAM. CODE § 102.004(a)(1).

       To establish her standing under section 102.004, Meiji had the burden to provide

“satisfactory proof” that J.A.E.’s “present circumstances would significantly impair” his “physical

health or emotional development.” Id. “Section 102.004(a) is an unusual provision because, in it,

the Texas Legislature confers standing on certain parties based on the existence of proof rather

than the existence of facts.” See In re K.D.H., 426 S.W.3d 879, 885 (Tex. App.—Houston [14th

Dist.] 2014, no pet.); Rolle v. Hardy, 527 S.W.3d 405, 416 (Tex. App.—Houston [1st Dist.] 2017,

no pet.) (same).




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         The trial court ruled Meiji had standing to file a conservatorship; however, it did so before

hearing any evidence. Only after some discussion about whether the court had discretion to order

an adoption evaluation, did the court hear testimony from relator, Meiji, and Dr. Flynn. The trial

court stated the parties could put on evidence of significant impairment while everyone was present

and it would “consider it.” On this record, we must conclude the trial court did not consider any

evidence before ruling Meiji had standing. Therefore, the trial court could not have determined

whether Meiji satisfied her burden to provide “sufficient proof” of significant impairment. 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).

“If a party fails to do so, the trial court must dismiss the suit.” Id.

         Nor did the court determine, after hearing the evidence, whether there existed a fact issue

to be determined by the trier of fact. When, as here, standing requires the examination of evidence,

the trial court is to review the relevant evidence to determine if a fact issue exists. See Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); K.D.H., 426 S.W.3d at 887. If

the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot

grant the motion to dismiss, and the fact issue will be resolved by the fact finder (in this case, Meiji

requested a jury trial). See Miranda, 133 S.W.3d at 227-28; K.D.H., 426 S.W.3d at 887.

                                                CONCLUSION

         We conclude the trial court abused its discretion by not first considering any evidence

before ruling Meiji had standing, not determining whether Meiji satisfied her burden to provide

“sufficient proof” of significant impairment, or determining whether there existed fact issues.2

Therefore, we conditionally grant the petition for writ of mandamus and direct the trial court to


2
  Relator also asserts the Kerr County court does not have jurisdiction and he contends the case was never transferred
to Kerr County. On January 3, 2019, the Williamson County court granted Meiji’s uncontested motion to transfer the
case to Kerr County. For this reason, we do not address the merits of relator’s complaint.


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vacate its January 17, 2020 “Order Denying Respondent’s Motion to Dismiss for Lack of Subject

Matter Jurisdiction” no later than fifteen days from the date of this opinion.

                                                  Patricia O. Alvarez, Justice




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