AFFIRMED; Opinion Filed October 7, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01109-CV

                         IN THE INTEREST OF I.I.G.T., A CHILD

                      On Appeal from the 254th Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DF-09-12092-R

                                          OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                   Opinion by Justice Myers
       This appeal concerns the standing of a person not related to the child to bring a suit

affecting the parent-child relationship (SAPCR). The trial court granted the child’s mother’s

plea to the jurisdiction and dismissed Roderick Alexander’s suit to establish conservatorship. In

his sole issue on appeal, appellant contends the trial court erred by granting Mother’s plea to the

jurisdiction. We affirm the trial court’s judgment.

                                        BACKGROUND

       The child was born October 23, 2001 in Louisiana. In March 2009, Mother completed an

acknowledgment of paternity stating appellant was the child’s biological father. Three months

later, Mother filed a petition in Dallas to rescind the acknowledgment of paternity. Appellant

filed a general denial and a counterpetition requesting he be appointed joint managing

conservator with Mother and that the court order genetic testing to establish his status as the

child’s father. On September 1, 2009, genetic testing established that appellant was not the
child’s father. Mother asserted appellant lacked standing to bring his counterpetition and moved

for dismissal of appellant’s suit.                     On November 18, 2009, the trial ordered “this case be

dismissed for lack of evidence, due to test results showing that [appellant] is not the father of [the

child].” The court also ordered that appellant be omitted from the child’s birth certificate and

that appellant was denied custody and visitation.

           On December 9, 2009, the court entered an amended judgment that found appellant was

not the biological parent of the child but found he was “a psychological dad,” and the court

appointed Mother and appellant joint managing conservators. Mother filed a motion for new

trial, which was granted.

           In April 2010, Mother filed another plea to the jurisdiction asserting appellant lacked

standing to bring his suit for conservatorship, and on April 26, 2010, the trial court held a hearing

on the plea to the jurisdiction. On December 23, 2010, the trial court granted the plea to the

jurisdiction, 1 dismissed appellant’s counterpetition for conservatorship, and denied all his claims

for relief. Appellant filed a motion for new trial and a motion for reconsideration; following a

hearing, the trial court denied the motions.

                                                              STANDING

           In his sole issue, appellant contends the trial court erred by sustaining Mother’s plea to

the jurisdiction and dismissing appellant’s counterpetition seeking conservatorship for lack of

standing.

           A person seeking conservatorship of a child must have standing to bring suit. In re

M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied).                                                       Standing is a

component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a


     1
         In this judgment, the trial court states, “While [Mother] may have allowed Mr. Alexander to form a relationship and bond with the child,
this is not sufficient to support standing for him to sue [Mother] for custody of or visitation with the minor child.”



                                                                     –2–
lawsuit. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993);

M.K.S.-V., 301 S.W.3d at 463. We review standing under the same standard we use for subject-

matter jurisdiction generally: whether the pleader alleged facts that affirmatively demonstrated

the court’s jurisdiction to hear the cause. Tex. Ass’n of Bus., 852 S.W.2d at 446; M.K.S.-V., 301

S.W.3d at 463. When reviewing an order dismissing a cause for want of jurisdiction, appellate

courts “construe the pleadings in favor of the plaintiff and look to the pleader’s intent.” Tex.

Ass’n of Bus., 852 S.W.2d at 446 (quoting Huston v. Fed. Deposit Ins. Corp., 663 S.W.2d 126,

129 (Tex. App.—Eastland 1983, writ ref’d n.r.e.)). When a plea to the jurisdiction challenges

the existence of jurisdictional facts and the evidence raises a fact question as to those facts, the

fact issue must be resolved by the trier of fact. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 227–28 (Tex. 2004).

       Standing in SAPCRs is governed by the family code, and a party bringing a SAPCR must

plead and establish standing under the family code’s provisions. M.K.S.-V., 301 S.W.3d at 464.

If the party fails to do so, the trial court must dismiss the suit. Id. A party’s standing to pursue a

cause of action is a question of law. Id. A court deciding a plea to the jurisdiction should

consider evidence and review the substance of the legal claims only to the extent necessary to

determine whether subject-matter jurisdiction over the case exists. In re M.P.B., 257 S.W.3d

804, 808 (Tex. App.—Dallas 2008, no pet.); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

555 (Tex. 2000).     When, as here, the trial court makes no separate findings of fact and

conclusions of law, we must draw every reasonable inference supported by the record in favor of

the trial court’s judgment. M.P.B., 257 S.W.3d at 808. 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. Under both standards, the trial court is the sole judge of the credibility

of the witnesses and the weight to be given their testimony, and we will not disturb the court’s

                                                 –3–
resolution of evidentiary conflicts that turn on credibility determinations or the weight of the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

           In this case, appellant alleged standing to bring a SAPCR under section 102.003(a)(9), 2

which provides:

           (a) An original suit may be filed at any time by: . . .

                      (9) a person, other than a foster parent, who has 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 . . . .

TEX. FAM. CODE ANN. § 102.003(a)(9) (West Supp. 2012). In computing the time under that

provision, “the court may not require that the time be continuous and uninterrupted but shall

consider the child’s principal residence during the relevant time preceding the date of

commencement of the suit.” Id. § 102.003(b). A “principal residence” is (1) a fixed place of

abode; (2) occupied consistently over a substantial period of time; (3) that is permanent rather

than temporary. M.K.S.-V., 301 S.W.3d at 464; M.P.B., 257 S.W.3d at 809.

           Appellant filed his SAPCR on July 14, 2009. Appellant testified he had sole possession

of the child for six months in 2005. Appellant testified he had possession of the child and

“maintained care, custody, and control” of the child every weekend in 2009 pursuant to a

“permanent arrangement” between him and Mother. He also picked up the child from daycare

and school once or twice a week. He testified the child has her own bedroom at his house that

she decorates herself.               Appellant also testified he was at almost every medical and dental

appointment of the child’s. He stated he had attended all the school functions where the child



     2 Appellant also alleged he had standing under sections 102.003(b), 102.005(5), and 153.312. Section 102.003(b) is not a basis for standing
but provides instructions for computing time under other standing provisions, including section 102.003(a)(9); section 102.003(b) is discussed
below. TEX. FAM. CODE ANN. § 102.003(b) (West Supp. 2012). Section 102.005(5) concerns standing in suits for adoption by an adult who has
had substantial past contact with the child sufficient to warrant standing. Id. § 102.005(5). Section 153.312 does not concern standing but
provides the requirements for the standard possession order when parents reside 100 miles or less apart. Id. § 153.312. Appellant does not assert
on appeal that any of these provisions provide him standing to bring the SAPCR.


                                                                     –4–
received trophies and awards. He said he did everything a father would do. He testified he was

involved in disciplining the child and helped with her physical, emotional, and health

requirements. He stated he contacted Mother about any problem with the child, but he said

Mother did not always contact him with the child’s problems. He also testified to financial

support for the child, including paying for her daycare; buying her clothes, shoes, and school

supplies; providing her with food at his house; getting her hair done; and “school projects and

programs.” He presented evidence that Mother listed him as the child’s father on records with

the child’s school and the YMCA.

       Mother testified the child never “lived with” appellant but would only “visit him.”

During some summer breaks, the child stayed with appellant’s mother. Mother also testified that

she and appellant discussed having the child live with appellant during the 2009 to 2010 school

year, “but this was not an agreement that we had, no. That was a discussion.” Mother agreed

that appellant had a significant past relationship with the child. Mother testified she listed

appellant as the child’s father on the school and YMCA forms to simplify his being able to pick

up the child if she was not able to pick her up. She testified that on weekends and holidays,

appellant would ask if he could take the child. Mother testified that if she did not have any

plans, then she would let appellant take the child. She testified they did not have a plan for his

possession of the child; instead, she thought he was just a friend helping her out.

       Appellant argues this case is analogous to three other cases, In re M.K.S.-V, 301 S.W.3d

460 (Tex. App.—Dallas 2009, no pet.), Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El

Paso 2002, no pet.), and In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.). In

M.K.S.-V., two women living together decided to rear a child, and one of the women conceived

through in vitro fertilization. Id. at 462. When the child was a year old, the women separated,

but they entered into an agreement for the nonparent to have regular access to and possession of

                                                –5–
the child. Id. They followed this schedule for two years. Id. However, when the mother

refused to let the nonparent have further access to the child, the nonparent filed suit seeking to be

appointed joint managing conservator. Id. The trial court dismissed the suit, concluding that the

nonparent lacked standing. Id. at 463. We reversed and concluded the parties’ agreement for

possession of the child was similar to the standard possession order under the family code. Id. at

465; see TEX. FAM. CODE ANN. § 153.312 (West Supp. 2012) (standard possession order for

parents residing within 100 miles of one another). We described how the child had her own

bedroom at the nonparent’s house; the regular visitation schedule; how the nonparent was listed

as a parent on the school records, picked up the child from school, and attended school functions;

how the two women, with the child, continued to attend church together as a family unit after

they separated; and how the nonparent established a college fund for the child. M.K.S.-V., 301

S.W.3d at 465. We stated,

        [T]he record does not suggest this pattern of possession and caregiving was
        intended to be a temporary arrangement. To the contrary, the possession
        agreement and the parties’ actions evinced an intent that the child occupy [the
        nonparent’s] home consistently over a substantial period of time.

Id. (citation omitted).

        In Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El Paso 2002, no pet.), the child’s

parents were divorced, and the father married Doncer, who became the child’s stepmother. See

Doncer, 81 S.W.3d at 351–52. Pursuant to an agreed order, the mother and father shared

possession of the child equally with the mother having the right to establish the child’s primary

residence. Id. at 351. Because the father and Doncer were married and lived together, the

father’s residence was also Doncer’s residence. See id. at 361. After three years of equally

shared custody and seventeen months under the agreed order, the father died and the mother

terminated contact between Doncer and the child. Id. at 351–52. Doncer brought suit seeking

possessory conservatorship, and the trial court dismissed Doncer’s suit for lack of standing. The
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trial court interpreted “principal residence” under section 102.003(b) to be the same as “primary

residence” under section 153.134(b)(1). Id. at 352 n.1; compare FAM. § 102.003(b) (requiring

the court to consider the child’s “principal residence” in calculating the time of actual care

control and possession of the child under section 102.003(a)(9)); with FAM. § 153.134(b)(1)

(West 2008) (requiring trial court to designate the conservator with the exclusive right to

determine the child’s “primary residence”). The trial court concluded that Doncer had not

established actual, care, control, and possession of the child for six months. Doncer, 81 S.W.3d

at 352. The court of appeals reversed, stating:

        By virtue of the joint managing conservatorship agreement, [the mother] and [the
        father] intended [the child] to occupy the Doncer home consistently, over a
        substantial period of time, at least until he attained majority. It was not intended
        to be a temporary arrangement to facilitate momentary housing difficulties,
        inconvenient travel schedules, the pursuit of higher education, or the inability to
        provide child care.

Id. at 362.

        In this case, because the trial court found appellant lacked standing and the court did not

make findings of fact and conclusions of law, we must draw every reasonable inference

supported by the record in support of the trial court’s judgment. M.P.B., 257 S.W.3d at 808.

Although aspects of M.K.S.-V. and Doncer are similar to the case before us, those cases are

distinguishable because the parties in M.K.S.-V. had a contractual possession schedule similar to

the standard possession order and the parties in Doncer had an agreed possession order. In this

case, there was no court order for appellant’s possession of the child before he filed suit, and the

evidence conflicts on whether appellant and Mother had an agreement for appellant’s regular

possession of the child. Under the applicable standard of review, we must conclude the trial

court impliedly found there was no such agreement. See City of Keller, 168 S.W.3d at 819;

Golden Eagle Archery, 116 S.W.3d at 761; M.P.B., 257 S.W.3d at 808. Mother’s testimony

shows each period of appellant’s possession of the child was a temporary arrangement with no
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obligation on Mother to consent to that period of possession or any future possession. M.K.S.-V.

and Doncer do not support appellant’s position.

          In In re M.P.B., the mother lived in Texas and was appointed primary joint managing

conservator of the infant child. In re M.P.B., 257 S.W.3d 804, 807 (Tex. App.—Dallas 2008, no

pet.). The father moved to California and had limited contact with the child thereafter. Id. The

mother moved in with her mother (the grandmother) for three months and then moved to an

apartment near the grandmother’s home.          Id.    The grandmother cared for the child at the

grandmother’s home every weekend of the child’s life, and the child spent more time overall at

the grandmother’s home than at the mother’s apartment. Id. at 809. When the mother was killed

when the child was twenty months old, the grandmother brought suit seeking conservatorship.

Id. at 807. The father asserted the grandmother lacked standing. The trial court concluded the

grandmother had standing and appointed her as the primary joint managing conservator with the

exclusive right to designate the child’s primary residence. Id. at 808. The trial court did not

enter findings of fact and conclusions of law. Id. On appeal, we had to draw every reasonable

inference supported by the record in favor of the trial court’s determination that the grandmother

had standing. Id. Applying that standard of review, we concluded the evidence showed the

grandmother’s home was the child’s principal residence for at least six months. Id. at 809. We

stated,

          Although Grandmother’s actual care, control, and possession of [the child] was
          not exclusive, with Mother’s consent, Grandmother provided [the child] with a
          fixed place of abode, occupied consistently over a substantial period of time, that
          was permanent rather than temporary. The record does not suggest this pattern of
          possession and caregiving was intended to be a temporary arrangement to
          facilitate momentary housing difficulties, inconvenient travel schedules, the
          pursuit of higher education, or the inability to provide child care. Thus, we
          conclude that under the specific facts of this case, the evidence is sufficient to
          support the trial court’s threshold determination that Grandmother had standing to
          file an original suit requesting managing conservatorship.

Id.
                                                 –8–
       In re M.P.B. is distinguishable from this case because the evidence in that case showed

the grandmother provided a permanent residence for the child. The evidence did not suggest the

child’s staying with the grandmother was intended to be temporary. Id. In this case, however,

Mother’s testimony shows the child’s residing with appellant was not intended to be a permanent

arrangement. We conclude M.P.B. does not support Mother’s argument.

       Drawing every reasonable inference supported by the record in favor of the trial court’s

judgment, we conclude the record does not show that, for the six months of appellant’s

possession of the child ending within 90 days of suit being filed, the parties intended for the child

to occupy appellant’s home consistently over a substantial period of time and intended that

appellant’s home be a permanent rather than temporary abode for the child. Cf. M.K.S.-V., 301

S.W.3d at 465 (evidence showed parties intended for the child to occupy nonparent’s home over

a substantial period of time). Instead, Mother’s testimony shows the periods of the child’s

residing with appellant for the various weekends, holidays, and summer breaks were each

intended to be a temporary arrangement.

       We conclude the trial court did not err by sustaining Mother’s plea to the jurisdiction and




                                                –9–
dismissing appellant’s suit for conservatorship. We overrule appellant’s sole issue. 3

                                                            CONCLUSION

           We affirm the trial court’s judgment.




                                                                            /Lana Myers/
                                                                            LANA MYERS
                                                                            JUSTICE

111109F.P05




     3
        Appellant also argues the trial court erred by requiring appellant to show that appointing Mother sole managing conservator or both parties
as joint managing conservators would significantly impair the child’s health or emotional development. Because we have concluded appellant
failed to establish standing under section 102.003, resolution of this argument is not necessary for disposition of the appeal. Accordingly, we do
not address it. See TEX. R. APP. P. 47.2.



                                                                     –10–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF I.I.G.T., A CHILD                 On Appeal from the 254th Judicial District
                                                     Court, Dallas County, Texas
No. 05-11-01109-CV                                   Trial Court Cause No. DF-09-12092-R.
                                                     Opinion delivered by Justice Myers.
                                                     Justices FitzGerald and Francis participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
       It is ORDERED that appellee Sueyuan O. Talton recover her costs of this appeal from
appellant Roderick Alexander.


Judgment entered this 7th day of October, 2013.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE




                                              –11–
