                                                  OPINION
                                             No. 04-11-00758-CV

                                        IN RE Michelle CHESTER

                                      Original Mandamus Proceeding 1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 28, 2011

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On October 18, 2011, relator Michelle Chester filed a petition for writ of mandamus,

complaining the trial court abused its discretion in striking her plea in intervention. We agree

and conditionally grant the petition for writ of mandamus.

                                               BACKGROUND

           This is the fourth mandamus proceeding filed by the parties relating to the underlying

child custody suit involving the custody of K.R.A. 2 In April of 2009, an agreed order for


1
  This proceeding arises out of Cause No. 2008-CI-09633, styled In the Interest of K.R.A., A Minor Child, pending in
the 225th Judicial District Court, Bexar County, Texas, the Honorable Peter Sakai presiding. However, the order
complained of was signed by the Honorable Antonia Arteaga, presiding judge of the 57th Judicial District Court,
Bexar County, Texas.
2
  See In re Chester, No. 04-11-00641-CV, 2011 WL 4863711 (Tex. App.—San Antonio Oct. 12, 2011, orig.
proceeding) (mem. op.) (Michelle’s petition challenging temporary orders entered sua sponte); In re Perez, No. 04-
11-00135-CV, 2011 WL 1900163 (Tex. App.—San Antonio May 11, 2011, orig. proceeding [mand. denied]) (mem.
op.) (Nicole’s petition challenging Arabela’s intervention based on lack of standing); In re Perez, No. 04-11-00134-
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grandparent access involving K.R.A. was entered between real party in interest and mother of

K.R.A., Nicole Perez, and paternal grandmother, Arabela Teltschick. 3 In October of 2009,

Nicole was arrested for driving while intoxicated with a blood alcohol level of .33 while K.R.A.

was in the vehicle.           Shortly thereafter, Arabela filed a petition to modify the parent-child

relationship in the same cause number as the grandparent access suit. On November 24, 2009,

the trial court granted a temporary restraining order for the protection of K.R.A., and, pending

further temporary orders, appointed Arabela and Nicole temporary joint managing conservators

of K.R.A., with Arabela having the exclusive right to designate the primary residence of K.R.A.

The order found that “Nicole Perez has shown a pattern or a history of driving while intoxicated

and her recent arrest [for] Child Endangerment has placed the child in the likelihood of imminent

serious physical harm.” As per the terms of the order, a hearing was set for December 2, 2009

on temporary orders. However, prior to the hearing, Nicole and Arabela entered into a Rule 11

Agreement, which continued the terms of the T.R.O. until a hearing on temporary orders could

be held on January 5, 2010. Then, on December 23, 2009, Margaret Perez, Nicole’s mother,

intervened in the suit with Nicole’s consent.

           Beginning on January 5, 2010, the trial court presided over a two day hearing regarding

temporary orders, at which Nicole challenged Arabela’s standing to pursue the modification suit

and sought to dismiss the suit and have K.R.A. returned to her. On the second day of the

hearing, paternal aunt Michelle Chester (daughter of Arabela) intervened in the suit, contending

she had standing to intervene because she “is related to the child within the third degree by

consanguinity, and the child’s present circumstances would significantly impair the child’s



CV, 2011 WL 1900385 (Tex. App.—San Antonio May 11, 2011, orig. proceeding [mand. denied]) (mem. op.)
(Nicole’s petition challenging Michelle’s intervention based on lack of standing).
3
    K.R.A.’s father is deceased.

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physical health or emotional development.” Nicole verbally objected to Michelle’s intervention

based on standing, but the trial court allowed Michelle to remain an intervenor at that time. At

the hearing, testimony was taken concerning placement of K.R.A. with paternal grandmother

Arabela, mom Nicole, maternal grandmother Margaret, and paternal aunt Michelle. At the

conclusion of the two day hearing, the trial court determined it was not appropriate to allow

K.R.A. to be returned to Nicole’s care. Instead, the trial court appointed Nicole, Margaret, and

Michelle as joint temporary managing conservators, with Michelle having the exclusive right to

designate the primary residence of K.R.A. 4 Nicole was only given supervised visitation with the

child.

           Shortly after the hearing, on January 8, 2010, Nicole filed a motion to strike Michelle’s

plea in intervention, which Michelle asserts was considered and denied by the trial court at a

non-evidentiary hearing on January 14, 2010. However, it does not appear that an order was

signed at that time. On November 23, 2010, Nicole filed a plea to the jurisdiction and a motion

to dismiss Michelle’s intervention for lack of standing. The only order that appears in the record

is one signed on February 8, 2011 that references a January 20, 2010 hearing. 5 This order denies

Nicole’s motion to strike Michelle’s plea in intervention.

           Nicole subsequently sought mandamus relief from this court, which asserted the trial

court erred in failing to strike Michelle’s plea in intervention because Michelle lacked standing.

See In re Perez, 2011 WL 1900385, at *1. On April 1, 2011, while the petition was pending in

this court, the trial court held a hearing to reconsider Nicole’s motion to strike Michelle’s plea in

intervention, and on April 2, 2011 the trial court signed an order striking Michelle’s plea in


4
    On March 3, 2010, the trial court signed temporary orders providing the same.
5
 Michelle contends that the order incorrectly references a January 20, 2010 hearing, and the correct date of the
hearing was January 14, 2010.

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intervention. However, two days after the order was signed, the trial court vacated the order

after the parties agreed vacating the order was appropriate so that the mandamus could proceed

in this court. After considering both the petition for writ of mandamus and the response filed in

this court, this court denied the petition. Id. Nicole then sought the same relief in the Texas

Supreme Court, which was also subsequently denied. Id.

       Later, on July 19, 2011, Nicole filed a Motion for Reconsideration of Motion to Strike

Plea in Intervention in the trial court, once again asking the trial court to reconsider Michelle’s

standing as an intervenor. This was the only motion set before the trial court at the hearing

scheduled on August 30, 2011, which resulted in the trial court sua sponte entering temporary

orders over Michelle’s objection based on lack of notice.         The temporary orders revoked

Michelle’s right to designate the primary residence of the child, giving Margaret, whom Nicole

lived with, such right. No argument was made regarding Nicole’s motion to strike Michelle’s

intervention and the trial court did not rule on such motion. Michelle subsequently filed a

petition for writ of mandamus in this court that challenged the temporary orders, and on October

12, 2011 we conditionally granted the petition after concluding the trial court abused its

discretion in modifying the existing temporary orders without notice and a hearing. In re

Chester, 2011 WL 4863711, at *1. The next day, on October 13, 2011, the trial court signed an

order striking Michelle’s plea in intervention based on lack of standing. This petition for writ of

mandamus ensued.

                                           ANALYSIS

I.     Standard of Review

       Mandamus will issue only to correct a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.



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2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.

proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law

to the facts,” and “a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.” Walker, 827 S.W.2d at 840. In Prudential, the Supreme

Court found that review of significant rulings in exceptional cases may be essential to: (1)

preserve a relator’s substantive or procedural rights from impairment or loss; (2) allow appellate

courts to give needed and helpful direction to the law that would otherwise prove elusive in an

appeal from a final judgment; and (3) prevent the waste of public and private resources invested

into proceedings that would eventually be reversed. 148 S.W.3d at 136. The Court articulated a

balancing test by which to determine whether there existed an adequate remedy on appeal. Id.

An appellate remedy is adequate if the detriments to issuing mandamus relief outweigh the

benefits; but if the detriments are outweighed by the benefits, “courts must consider whether the

appellate remedy is adequate.” Id. The Court explained that prior cases in which the Court

found an appellate remedy was inadequate “serve to illustrate that whether an appellate remedy

is ‘adequate’ so as to preclude mandamus review depends heavily on the circumstances

presented . . . .” Id. at 137. Furthermore, in cases involving child custody, “[j]ustice demands a

speedy resolution,” and appeal is frequently inadequate to protect the rights of parents and

children. In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig.

proceeding) (citing Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987)); see also In re S.B., No.

02-11-00081-CV, 2011 WL 856963, at * 3 (Tex. App.—Fort Worth, March 11, 2011, orig.

proceeding) (holding relators lacked an adequate remedy by appeal from the trial court’s order

striking their intervention).




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II.    Standing Under Section 102.004(a)(1) of the Texas Family Code

       Michelle contends she has standing under section 102.004(a)(1) of the Texas Family

Code, which provides that “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 . . . 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 ANN. § 102.004(a)(1) (West 2008). When a party is statutorily

required to establish standing with “satisfactory proof,” as section 102.004(a)(1) requires, the

evidentiary standard is by a preponderance of the evidence. In re S.M.D., 329 S.W.3d 8, 13

(Tex. App.—San Antonio 2010, pet. dism’d). We review the “present circumstances” of the

child as they existed at the time the intervention was filed. In re Vogel, 261 S.W.3d 917, 922

(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).

       It is undisputed that Michelle is a relative within the third degree by consanguinity. See

TEX. FAM. CODE ANN. § 102.004(a)(1). Therefore, we must determine whether Michelle met her

burden with satisfactory proof that at the time she intervened in the suit K.R.A.’s present

circumstances would significantly impair her physical health or emotional development. Id.;

Vogel, 261 S.W.3d at 922. Michelle contends that at the time she intervened, the evidence

clearly showed that allowing Nicole to have custody of K.R.A. would have significantly

impaired K.R.A.’s physical health or emotional development. We agree.

       At the time Michelle intervened during the temporary orders hearing, Nicole was seeking

to have the suit dismissed and the T.R.O. dissolved, which, if granted, would have returned

K.R.A. to Nicole. Michelle testified she sought to intervene because she was concerned K.R.A.

would be placed back with Nicole instead of being placed with Michelle’s mother Arabela. The



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testimony the day before she intervened established that Arabela herself had three prior DWI’s.

Therefore, at the time Michelle intervened, K.R.A.’s present circumstances were that the T.R.O.

was set to expire and absent the entry of temporary orders placing K.R.A. elsewhere, K.R.A.

would have been returned to Nicole. Accordingly, we must determine whether the placement of

K.R.A. in the care of Nicole at that time would have significantly impaired K.R.A.’s physical

health or emotional development. See TEX. FAM. CODE ANN. § 102.004(a)(1).

       It is undisputed that K.R.A. was removed from Nicole’s care after she was arrested for

driving while intoxicated with K.R.A. in the vehicle. It is also undisputed that Nicole was on

probation for a prior DWI and had at least one other prior DWI conviction. At the temporary

orders hearing when Michelle intervened, the trial court stated: “I think there’s no need of me

tiptoeing, mom, you’re not in a position right now to take care of this little girl.” Later in the

hearing, while Nicole’s attorney was contesting Michelle’s standing by arguing that the child’s

present circumstances would not significantly impair the child’s physical health and emotional

development, the trial court responded, “The court finds that the child is in danger. With that,

adjust your argument.” Furthermore, Margaret, Nicole’s mother, testified that she was seeking

temporary custody of K.R.A. because she was concerned about K.R.A.’s safety.

       In addition, at the April 2011 hearing at which the trial court was again reconsidering

Michelle’s standing, the trial court reiterated the concerns it had with K.R.A. being returned to

Nicole back in January of 2010 at the temporary orders hearing as follows:

               I have no doubt that what happened on January 10th, happened for
               a reason, 2010. I have no doubt - - I remember the fear that I had
               with this little girl and what was going to be happening if she went
               back to mom. And it was clear that the best parent in the room
               . . . was without a doubt Ms. Chester. And that’s why - - and that’s
               why the child has been with Ms. Chester this whole time.
               However, at that time, the child was in no imminent danger.



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The trial court further stated at the April 2011 hearing: “when I said I find the child was in

danger, it means I can take her away from mom because the child would be in danger if she was

with mom.” The trial court also acknowledged that at the time of the hearing, “we [had] a child

in . . . crisis. . . . And we had an aunt ready, willing, and able. And even though it may or may

not have been the correct legal result, I believe on that day that that was absolutely in the best

interest of [K.R.A.] at the time, considering everything.”

       The trial judge has now responded to this current petition for writ of mandamus by

stating that she disagrees K.R.A.’s “present circumstances” at the time of the temporary orders

hearing would have significantly impaired her physical health or emotional development.

However, based on a full review of the record, it is clear the trial court had significant concerns

at the January 2010 temporary orders hearing of placing K.R.A. back in Nicole’s care. K.R.A.’s

circumstances at the time of the temporary orders hearing were that the T.R.O. was set to expire

and absent the entry of temporary orders placing K.R.A. elsewhere, K.R.A. would have been

returned to Nicole. As a result, the trial court appointed Michelle joint managing conservator

with the right to designate the primary residence of the child, thereby determining Michelle had

standing to intervene.    Thereafter, this court denied a mandamus challenging Michelle’s

standing. We conclude there was satisfactory proof the “present circumstances” of K.R.A., at

the time of the temporary orders hearing when Michelle intervened, would have significantly

impaired her physical health or emotional development. We cannot now reassess those “present

circumstances” and determine otherwise. Because Michelle had standing under 102.004(a)(1) to

bring an original suit, she clearly has standing to intervene in the pending suit. Accordingly, the

trial court abused its discretion in striking Michelle’s intervention. Furthermore, we believe

Michelle lacks an adequate remedy by appeal and mandamus relief is appropriate in this case



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because it is necessary to preserve Michelle’s substantive rights from impairment or loss. See

Prudential, 148 S.W.3d at 135; see also S.B., 2011 WL 856963, at * 3.

III.   Standing Under Section 156.001 of the Texas Family Code

       Finally, Nicole’s primary contention in her response to the petition for writ of mandamus

filed in this court is that Michelle lacks standing to request conservatorship via a modification

suit because the order entered in the original suit was a grandparent access order and not an

initial custody determination. See TEX. FAM. CODE § 156.001. However, with some exceptions

not applicable here, a trial court maintains continuing, exclusive jurisdiction of the parties and

matters provided by this title. Id. § 155.002. Title 5 includes all matters involving the parent-

child relationship and suits affecting the parent-child relationship, which includes a suit for

possession or access by a grandparent. Id. Title 5; id. § 153.432 (suit for possession or access by

grandparent). The provisions of chapter 156 clearly govern suits that attempt to effect a change

in custody following the entry of an initial custody order. Id. §§ 156.001–.105; In re P.D.M.,

117 S.W.3d 453, 456 (Tex. App.—Fort Worth 2003, pet. denied). Section 156.001 provides that

“[a] court with continuing, exclusive jurisdiction may modify an order that provides for the

conservatorship, support, or possession of and access to a child.” TEX. FAM. CODE § 156.001

(emphasis added). Furthermore, a person who has standing to sue under chapter 102 may file a

suit for modification in the court with continuing, exclusive jurisdiction. Id. § 156.002(b).

Because we have determined Michelle has standing under section 102.004(a)(1) and because the

trial court retained continuing, exclusive jurisdiction, we conclude Michelle has standing to

request conservatorship via a modification suit.




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                                          CONCLUSION

       Based on the foregoing analysis, we hold the trial court erred in striking Michelle’s plea

in intervention. Accordingly, we conditionally grant the petition for writ of mandamus. The trial

court is ordered to withdraw the October 13, 2011 order striking Michelle’s plea in intervention.

The writ will issue only if the trial court fails to comply within fourteen days.



                                                              Sandee Bryan Marion, Justice




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