                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS
                                            §
                                                                    No. 08-18-00024-CV
                                                  §
 IN RE: J.M.G.,                                               AN ORIGINAL PROCEEDING
                                                  §
                    Relator.                                          IN MANDAMUS
                                                  §

                                                  §

                                          OPINION

        The underlying case involves a suit by a grandparent, M.G., for possession or access to the

grandchild. Relator, J.M.G., has filed a mandamus petition against the Honorable Mike Herrera,

Judge of the 383rd District Court of El Paso County, Texas, to challenge his order denying

Relator’s plea to the jurisdiction. We conditionally grant mandamus relief.

                                         Factual Summary

        Relator and F.J.G., Jr. (Father) are the parents of two children, I.A.G., and F.A.G. Father

is in jail awaiting trial on charges of indecency with one of his children by sexual contact. M.G.

is the paternal grandmother of the children. On September 27, 2017, Grandmother filed a petition

to modify requesting grandparent access and possession pursuant to Texas Family Code

§153.432(c). The petition to modify was not supported by affidavit as required by the Family

Code.    See TEX.FAM.CODE ANN. §153.432(c) (West 2014).              The associate judge denied

Grandmother’s petition to modify, and Grandmother requested a de novo hearing.

        Relator filed a plea to the jurisdiction seeking dismissal of the petition to modify because
Grandmother had not attached the required affidavit. In response to the plea, Grandmother filed

an amended petition which included an affidavit alleging that denying her possession of and access

to the children “would significantly impair the children’s physical health and emotional well

being….”

       At the beginning of the de novo hearing, Relator argued that the suit should be dismissed

because the allegations in Grandmother’s affidavit, even if true, were not sufficient to establish

standing to seeking possession or access. Grandmother argued that Relator had waived this

complaint because the plea to the jurisdiction was limited to a complaint that no affidavit had been

filed at all, and Relator was required to amend her plea to the jurisdiction in order to challenge the

sufficiency of the affidavit. Relator responded that she was not required to amend the plea because

it encompassed a complaint that Grandmother had failed to file an affidavit which made the

necessary statutory showing. The trial court denied the plea to the jurisdiction and proceeded to

hear the merits of Grandmother’s petition to modify.

       Grandmother testified consistently with her affidavit, stating that her son lived with her

from 2009 to June 2016 and she had access to the children during his periods of standard visitation,

namely, every other weekend, spring break, thirty days in the summer, and holidays. Grandmother

picked up the children from school during the periods of visitation and she returned them to Relator

at the conclusion of visitation. She described her relationship with the children as “very good”.

Since Father has been in jail, Relator has not allowed Grandmother access to the children, but the

children have contacted her by telephone and text.

       Relator testified that the children had a close relationship with Grandmother, but she

stopped allowing Grandmother to have contact with the children after her daughter made an outcry

that she was sexually assaulted by Father and his brother at Grandmother’s home. Relator



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explained that she did not believe her children would be safe because Grandmother did not believe

the child’s sexual abuse allegations and she was asking Relator to drop the charges. Relator also

testified that Grandmother never asked her how the children were doing and her only concern was

the criminal cases against her sons.

       At the conclusion of the hearing, the trial court stated it would consider allowing

Grandmother to have supervised visitation with the children, but only if the children wanted to see

her. The court set the case for a conference with the children for March 9, 2018. On February 14,

2018, the trial court signed an order denying the plea to the jurisdiction.

       Relator filed a mandamus petition to challenge the order denying her plea to the

jurisdiction. We granted Relator’s motion to stay proceedings in the trial court pending our review

of the mandamus petition.

                                   GRANDPARENT ACCESS

       In her sole issue, Relator contends that the trial court was required to dismiss

Grandmother’s suit for lack of standing because the facts alleged in Grandmother’s affidavit, even

if true, do not demonstrate that a denial of access or possession would significantly impair the

children’s physical health or emotional well-being as required by Section 153.432(c) of the Family

Code. Alternatively, Relator argues that, even if the trial court was authorized to conduct the

hearing on the merits, the evidence presented did not show significant impairment of the children’s

physical health or emotional well-being, and therefore, the trial court should have dismissed the

suit rather than setting the matter for a conference with the children.

                                        Mandamus Standard

       Generally, mandamus relief is appropriate only to correct a clear abuse of discretion or to

compel the performance of a ministerial duty, and where the relator has no adequate remedy by



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appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011)(orig. proceeding); In re Prudential

Insurance Company of America, 148 S.W.3d 124, 135-36 (Tex. 2004)(orig. proceeding). The

burden is on relator to show it is entitled to mandamus relief. See In re Ford Motor Company, 165

S.W.3d 315, 317 (Tex. 2005)(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992)(orig. proceeding). Mandamus relief is available if a trial court grants a grandparent’s request

for temporary access to grandchildren where the grandparent fails to prove 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. See In re Scheller, 325 S.W.3d 640, 643 (Tex.

2010); In re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007).

                                  Standing -- General Principles

       We begin by addressing the first argument which pertains to Grandmother’s standing to

file suit seeking access or possession. A plea to the jurisdiction is a dilatory plea by which a party

challenges the court’s authority to determine the subject matter of a cause of action. Bland

Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see Texas Department of

Transportation v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999).

       Standing is a component of subject-matter jurisdiction. Texas Association of Business v.

Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993); In re H.R.L., 458 S.W.3d 23, 28

(Tex.App.--El Paso 2014, orig. proceeding). Whether a court has subject-matter jurisdiction is an

issue of law which must be reviewed de novo. Texas Department of Transportation v. City of

Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). A party’s lack of standing deprives the trial court

of subject-matter jurisdiction and renders any action of the trial court void. In re H.R.L., 458

S.W.3d at 29. Subject-matter jurisdiction is never presumed and cannot be waived. Texas

Association of Business, 852 S.W.2d at 443-44. Consequently, it can be raised for the first time



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on appeal. Id. at 445.

                          Standing Required for Grandparent Access Suit

       The relationship between parent and child is constitutionally protected, and parents have a

fundamental right to make decisions concerning the care, custody, and control of their children.

Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). There is a

presumption that a fit parent acts in the best interest of her children. Troxel, 530 U.S. at 68, 120

S.Ct. at 2061; see In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007). “[S]o long as a parent

adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State

to inject itself into the private realm of the family to further question the ability of that parent to

make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-

69, 120 S.Ct. at 2061; see In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006). Thus, the

Supreme Court held in Troxel that a trial court’s order for grandparent access unconstitutionally

infringed on the parent’s fundamental liberty interest where there was no evidence that the parent

was unfit, that the children’s health and well-being would suffer, or that the parent intended to

exclude grandparent access entirely. Troxel, 530 U.S. at 68-75, 120 S.Ct. at 2060-65.

       Consistent with Troxel, Section 153.433 of the Texas Family Code now requires that a

grandparent seeking court-ordered possession or access overcome the presumption that a parent

acts in his or her child’s best interest by proving by a preponderance of the evidence that denial of

access to the child would significantly impair the child’s physical health or emotional well-being.

See TEX.FAM.CODE ANN. §153.433(a)(2) (West 2014); In re Derzapf, 219 S.W.3d at 333. This

requirement exists to prevent a court from interfering with child-rearing decisions made by a parent

simply because the court believes that a “better decision” could have been made. See In re J.P.C.,

261 S.W.3d 334, 337 (Tex.App.--Fort Worth 2008, no pet.) (quoting Troxel, 530 U.S. at 73, 120



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S.Ct. at 2064). Under the statute, a trial court must presume that a fit parent acts in his or her

child’s best interest, and the court abuses its discretion if it grants access to a grandparent who has

not met this standard. Derzapf, 219 S.W.3d at 333.

        This same requirement is included in Section 153.432(c) which establishes the

requirements for a grandparent to have standing to file a suit for access or possession. The statute

provides that:

        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.

TEX.FAM.CODE ANN. §153.432(c) (emphasis supplied).

Thus, the trial court is required to make a preliminary determination regarding standing.

                                    Standing not Subject to Waiver

        Grandmother argued in the trial court and now in this original proceeding that Relator did

not amend her plea to the jurisdiction to challenge the sufficiency of Grandmother’s affidavit.

Implicit in this argument is the notion that Relator waived her complaint. It is well-established

that jurisdiction is never presumed and cannot be waived. Texas Association of Business, 852

S.W.2d at 443-44. Given that Relator is permitted to raise a standing argument for the first time

on appeal, she certainly can raise it for the first time at the hearing on her plea to the jurisdiction.

To the extent the trial court denied the plea to the jurisdiction or disregarded Relator’s complaint

regarding the sufficiency of the affidavit based on a finding of waiver, it clearly abused its

discretion.

                     Grandmother’s Affidavit Insufficient to Establish Standing



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       The next issue is whether Grandmother’s affidavit was sufficient to establish standing

under Section 153.432(c) by containing an allegation, supported by facts, that denial of possession

of or access to the child by Grandmother would significantly impair the child’s physical health or

emotional well-being. This has been described as a high threshold burden. See In re Scheller, 325

S.W.3d 640, 643 (Tex. 2010); In re Derzapf, 219 S.W.3d at 335.

       Grandmother’s affidavit stated as follows:

              Based on the following facts, I allege that denial of possession of or access
       to I.A.G. and F.A.G. by [Grandmother] would significantly impair the children’s
       physical health or emotional well-being based on the following:

               I am the paternal grandmother of the children, I.A.G. and F.A.G., who are
       currently ages 15 years old and 13 years old.

               Since my grandchildren, I.A.G. and F.A.G., were born they have had a close
       relationship with me and seen me often. From 2009 to June of 2016, my son and
       the children’s father, [Father] resided with me and my grandchildren were with me
       during the their Father’s Standard Possession as follows: Every-over [sic] weekend,
       30 days every summer, spring break and holidays.

              Over the years, I attended many school activities and events for my
       grandchildren. Additionally, my grandchild used to attend church with me at Del
       Sol.

               My son has been incarcerated in jail since of June of 2016, my
       grandchildren have been contacting me by telephone/text and they tell me how
       much they miss me and want to have visitation with me. Additionally, my
       grandchildren want to visit my mother and the children’s great-grandmother who
       is currently in [sic] 88 years old and has serious health problems with her heart. My
       grandchildren [sic] emotional well-being is impaired without visiting them.

              Based on above, the denial of me having possession of or access to my
       grandchildren I.A.G. would significantly impair the children’s physical health or
       emotional well-being.

       In summary, Grandmother asserted that she had a close relationship with the children and

saw them often from 2009 to June 2016, she attended many school activities and other events, and

the children have told her that they miss her and want to have visitation with her. Assuming these



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facts are true, the affidavit nevertheless fails to rebut the presumption that Relator is acting in the

children’s best interest because it does not support a conclusion that denial of access or possession

by Grandmother would significantly impair the children’s physical health or emotional well-being.

In fact, the affidavit does not allege any facts pertaining either directly or indirectly to the

grandchildren’s physical or emotional well-being and there is nothing to show that the children are

suffering any impairment much less significant impairment. The trial court clearly abused its

discretion by failing to dismiss Grandmother’s suit for lack of jurisdiction and proceeding to hear

the petition on the merits. See In re Scheller, 325 S.W.3d at 643-44 (maternal grandfather failed

to establish that denial of access to his grandchildren would significantly impair grandchildren’s

physical health or emotional well-being; evidence that grandchildren experienced anger and

nightmares following their mother’s death did not establish anything more substantial than

grandchildren’s understandable sadness resulting from losing a family member and missing their

grandparents). We sustain Relator’s sole issue and conditionally grant mandamus relief. The trial

court is directed to vacate the order denying Relator’s plea to the jurisdiction and to dismiss

Grandmother’s suit for possession or access. The writ of mandamus will issue only if the trial

court fails to act in accordance with our opinion and judgment.



                                               GINA M. PALAFOX, Justice
June 13, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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