                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00036-CV


In the Interest of C.M.J., A Child        §      From the 233rd District Court

                                          §      of Tarrant County (233-494068-11)

                                          §      December 21, 2012

                                          §      Opinion by Justice Gabriel


                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

       It is further ordered that Appellants W.R. and L.R. shall pay all of the costs

of this appeal, for which let execution issue.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Lee Gabriel
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00036-CV


IN THE INTEREST OF C.M.J., A
CHILD




                                   ----------

          FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

      Appellants W.R. and L.R.2 (Grandparents) appeal the trial court’s order

appointing S.W. (Father) as the sole managing conservator of C.M.J. We affirm.



      1
      See Tex. R. App. P. 47.4.
      2
      We use aliases for the child and her relatives throughout this opinion.
See Tex. R. App. P. 9.8(b)(2).


                                       2
                                     Background Facts

       C.M.J. lived with K.C. (Mother) until December 28, 2010, when Mother was

murdered. After Mother’s death, C.M.J. moved in with Grandparents. Father

agreed in writing with Grandparents to name them as temporary managing

conservators for a six-month period so that C.M.J. could finish the school year in

Texas. The agreement was to end in July 2011 when C.M.J. would come to live

with Father in North Carolina. On March 23, 2011, Grandparents filed an original

petition seeking joint managing conservatorship with Father. Mother and Father

were never married, and a child custody determination had not been made

during C.M.J.’s life.

       Father filed a pro se letter that appears in the record as his answer. In his

answer, Father stated, ―I feel that it is my responsibility to take care of my

daughter.     She should be here with me so I can support her emotionally,

physically, and financially. . . . I want for [C.M.J.] to experience having a father in

her life on a daily basis.‖ Then on August 24, 2011, Father filed a plea to the

jurisdiction, arguing that Grandparents lacked standing because they ―failed to

have [] actual care, control, and possession of [C.M.J.] for at least six months

prior to initiating their action.‖

       Grandparents filed a response to Father’s plea to the jurisdiction on

September 12, 2011, and they also amended their original petition at that time,

arguing that they had had ―actual care, control, and possession of [C.M.J.] for


                                            3
over six months at this point.‖     In their response, Grandparents argued that

Father’s standing argument was now moot.

      After a hearing, the trial court appointed Father as sole managing

conservator. In its order, the trial court stated that Grandparents did not have

standing but that the trial court had jurisdiction over the case. Grandparents filed

a ―Motion to Vacate Order for Lack of Subject Matter Jurisdiction,‖ agreeing that

they did not have standing to file their suit and arguing that the trial court’s orders

were therefore void for lack of subject matter jurisdiction. Grandparents also filed

a motion for new trial. The trial court denied both motions.3 Grandparents then

filed this appeal.4

                                     Discussion

      In their sole issue, Grandparents argue that all of the trial court’s orders

should be vacated because the trial court did not have subject matter jurisdiction

to hear the dispute because Grandparents did not have standing to bring the suit.

We review a trial court’s determination of standing de novo. See In re K.K.T., No.

      3
        After the denial of their motions, Grandparents filed a petition for writ of
mandamus in this court. In their petition, Grandparents again argued that they
did not have standing to file their suit and so the trial court did not have
jurisdiction to hear the case. We denied their petition on February 27, 2012.
      4
       Father filed a reply brief in this court that contained a number of formal
defects. See Tex. R. App. P. 9, 38. We notified Father to file an amended brief
that complied with the rules of appellate procedure and this court’s local rules
and that failure to file a compliant brief could result in striking the filed brief.
Father did not file an amended brief. We therefore order Father’s brief stricken,
and we proceed with this appeal as if Father had failed to file a brief. See Tex.
R. App. P. 38.9(a).


                                          4
07-11-00306-CV, 2012 WL 3553006, at *2 (Tex. App.—Amarillo Aug. 17, 2012,

no pet.) (mem. op.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004)). The pleadings are taken as true and construed in favor of

the pleader. Id.

      Standing is considered ―a prerequisite to subject-matter jurisdiction, and

subject-matter jurisdiction is essential to a court’s power to decide a case.‖

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Standing

cannot be attained by waiver and can be challenged at any time. See Tex. Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); Sarah v.

Primarily Primates, Inc., 255 S.W.3d 132, 139 (Tex. App.—San Antonio 2008,

pet. denied). In an original suit, standing is a threshold issue when the petitioner

seeks managing conservatorship. See In re K.K.C., 292 S.W.3d 788, 790 (Tex.

App.—Beaumont 2009, orig. proceeding) (citing In re M.P.B., 257 S.W.3d 804,

808 (Tex. App.—Dallas 2008, no pet.)). The burden to prove standing is on the

petitioner. See id.

      ―The Texas Legislature has provided a comprehensive statutory framework

for standing in the context of suits involving the parent-child relationship.‖ Id. at

790–91; see Tex. Fam. Code Ann. § 102.003 (West Supp. 2012), §§ 102.0035,

102.004 (West 2008), § 102.0045 (West Supp. 2012), § 102.006 (West 2008). In

their original petition, Grandparents relied solely on Texas Family Code section

102.003(a)(9), which provides standing for ―a person, other than a foster parent,

who has had actual care, control, and possession of the child for at least six


                                         5
months ending not more than 90 days preceding the date of the filing of the

petition.‖ See id. § 102.003(a)(9). To compute the time under this section, ―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.‖ In re E.G.L., 378 S.W.3d 542, 547 (Tex.

App.—Dallas 2012, no pet.) (citing Tex. Fam. Code Ann. § 102.003(b)).

      Grandparents filed suit on March 23, 2011. C.M.J. lived with Mother until

December 2010. Therefore, at the time the suit was filed, C.M.J. had only lived

with Grandparents for three months. Almost six months after they originally filed

suit, in response to Father’s plea to the jurisdiction, Grandparents filed an

amended petition alleging that they had standing because they ―had actual

possession of [C.M.J.] for over six months‖ at that point.        However, this is

insufficient to constitute standing under section 102.003(a)(9) because standing

and subject matter jurisdiction are determined at the time the lawsuit is filed. See

M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). While

Grandparents had actual possession of C.M.J. for over six months at the time

they amended their petition, they did not have actual possession of her for six

months at the time the lawsuit was filed. Amending their original petition did not

confer standing on Grandparents.5 See Kilpatrick v. Kilpatrick, 205 S.W.3d 690,

703 (Tex. App.—Fort Worth 2006, pet. denied) (―Because [plaintiff] lacked

      5
        Grandparents also do not have standing under any other provisions of the
family code. See Tex. Fam. Code Ann. §§ 102.003–.004.


                                         6
standing at the time the action was filed, the suit must be dismissed even if

[plaintiff] later acquired an interest sufficient to support standing.‖).

      However, if Father’s letter to the trial court filed in answer to Grandparent’s

petition may be construed as a counter-petition, then the trial court had

jurisdiction to hear the case. We construe Father’s letter liberally and in his

favor. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.

2000) (noting that a petition is sufficient if it gives fair and adequate notice of the

facts to enable the opposing party to prepare a defense). In his letter, Father

stated that he wanted to take care of his daughter, support her, and be in her life

―on a daily basis.‖ Under this liberal construction, we conclude that Father’s

letter was a counter-petition seeking managing conservatorship of C.M.J.

      Although Father is not a resident of Texas, the trial court made the finding,

which is uncontested by Grandparents, that C.M.J.’s home state is Texas. See

Tex. Fam. Code Ann. § 152.201 (West 2008) (providing that a court of this state

has jurisdiction to make an initial child-custody determination if ―this state is the

home state of the child on the date of the commencement of the proceeding‖).

As C.M.J.’s biological father, Father had standing to file suit.              See id.

§ 102.003(a)(1); see also id. § 102.011(b)(2) (allowing the trial court to exercise

personal jurisdiction over a nonresident when he submits to this state’s

jurisdiction ―by filing a responsive document having the effect of waiving any

contest to personal jurisdiction‖). Therefore, because Father had standing to file

suit, and because he filed a counter-petition in response to Grandparent’s


                                            7
petition, the trial court had jurisdiction to hear this case. The trial court’s order

appointing Father as C.M.J.’s sole managing conservator is not void for lack of

subject matter jurisdiction. We overrule Grandparents’ sole issue.

                                    Conclusion

      Having overruled Grandparents’ sole issue, we affirm the trial court’s

judgment.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: December 21, 2012




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