                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION

                                            No. 04-18-00111-CV

                               IN THE INTEREST OF N.M.B., a Child

                     From the 225th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CI05268
                               Honorable Peter Sakai, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

           Channel Beverly appeals the trial court’s order dismissing the underlying suit with

prejudice. Beverly presents three issues on appeal contending: (1) she “has standing to bring an

original SAPCR as an ‘Intended Parent;’” (2) “ratification supports recognition of the parent-child

relationship between Channel and [N.M.B.];” and (3) “equitable tolling applies to the 90-day

deadline to file suit under the general standing statute.” We affirm the trial court’s order.

                                               BACKGROUND 1

           N.M.B. was born on May 14, 2015. N.M.B. was conceived through artificial insemination,

and Shante Posey is N.M.B.’s biological mother. N.M.B. lived with Posey and Beverly until they


1
  The Office of the Attorney General has a separate lawsuit pending to adjudicate N.M.B.’s parentage (the “OAG
lawsuit”). An order consolidating the underlying lawsuit and the OAG lawsuit was vacated; therefore, this opinion
only addresses the background relevant to the underlying lawsuit and this appeal.
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separated in July of 2016, and Posey and N.M.B. moved to Ohio. Although Posey and N.M.B.

subsequently moved back to Texas, Beverly was not allowed to have access to N.M.B.

        On March 22, 2017, Beverly filed the underlying lawsuit which was entitled petition for

divorce or, in the alternative, petition to adjudicate parentage. Beverly’s petition contained two

sections. In the first section, entitled petition for divorce, Beverly sought a divorce and to be

appointed as a joint managing conservator of N.M.B. In the second section of the petition, entitled

petition to adjudicate parentage, Beverly also sought to be appointed as a joint managing

conservator of N.M.B.

        On December 18, 2017, Posey moved to dismiss the portion of the lawsuit requesting relief

as to a parent-child relationship between Beverly and N.M.B., asserting Beverly lacked standing

to seek such relief. After a two-day hearing, the trial court signed an order dismissing the

underlying lawsuit.

        The trial court dismissed the suit for divorce based on its finding “that there is no valid

informal marriage between” Beverly and Posey. Beverly does not appeal this portion of the trial

court’s order.

        The trial court dismissed the suit affecting the parent-child relationship (SAPCR) based on

its finding that Beverly lacked standing to bring such a suit. Beverly appeals this portion of the

trial court’s order.

                                      STANDARD OF REVIEW

        “Standing, like other issues implicating a court’s subject matter jurisdiction, is a question

of law that we review de novo.” In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). “In evaluating

standing, we construe the pleadings in the plaintiff’s favor, but we also consider relevant evidence

offered by the parties.” Id.



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       “[S]tanding to bring a SAPCR is governed by statute.” Id. “When standing has been

statutorily conferred, the statute itself serves as the proper framework for a standing analysis.” In

re H.G., 267 S.W.3d 120, 123 (Tex. App.—San Antonio 2008, pet. denied) (internal quotation

omitted). “The party seeking relief must allege and establish standing within the parameters of the

language used in the statute.” Id. at 124.

                                             DISCUSSION

       In her first issue, Beverly contends she has standing to bring a SAPCR under section

160.602(a)(8) of the Texas Family Code as an “intended parent.” The statutory standing conferred

by section 160.602(a)(8) of the Code, however, pertains to a proceeding to adjudicate parentage in

which a trial court “render[s] an order adjudicating whether a man alleged or claiming to be the

father is the parent of the child.” See TEX. FAM. CODE ANN. § 160.636(a). Although Beverly’s

pleading contained an alternative claim entitled “Petition to Adjudicate Parentage,” the relief she

sought was to be appointed as a joint managing conservator of N.M.B. Therefore, Beverly’s

pleading did not seek “an order adjudicating whether a man alleged or claiming to be the father is

the parent of the child” for which standing could be conferred by section 160.602(a)(8) of the

Code. Id. Instead, Beverly’s pleading sought conservatorship, possession, and access which is

governed by Chapter 153 of the Code, and standing for such a proceeding is governed by section

102.003 of the Code. See §§ 102.003, 153.005. Because Beverly cannot assert standing under

section 160.602(a)(8) to seek relief under Chapter 153, Beverly’s first issue is overruled.

       In her second issue, Beverly contends ratification supports recognition of the parent-child

relationship between herself and N.M.B. In support of this contention, Beverly cites this court’s

decision in K.B. v. N.B., 811 S.W.2d 634 (Tex. App.—San Antonio 1991, writ denied), and further

asserts “[t]he doctrine of equitable estoppel also informs this case.” This court’s decision in K.B.

v. N.B., however, did not address standing. Instead, that case involved a divorce proceeding
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between a husband and wife, and the husband’s challenge to a trial court’s order requiring him to

pay child support for a child born during the marriage through artificial insemination. 811 S.W.2d

at 636. Accordingly, K.B. v N.B. provides no support for Beverly’s contention that the trial court

erred in dismissing the underlying lawsuit for lack of standing. Furthermore, this court has clearly

held standing, as a component of subject matter jurisdiction, cannot be conferred by estoppel. In

re H.G., 267 S.W.3d at 126. Beverly’s second issue is overruled.

       In her third issue, Beverly contends she has standing to bring an original SAPCR under

section 102.003(a)(9) which confers standing on “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).

Although Beverly concedes she did not file the underlying lawsuit within the 90-day deadline, she

asserts the 90-day deadline should be equitably tolled because she delayed in filing the lawsuit

based on Posey’s “representations that they would come to an out-of-court resolution.” Beverly

admits no cases have applied the concept of equitable tolling to the 90-day deadline.

       “[T]he concept of equitable tolling contemplates that an action has been performed outside

the ordinary time limits, but that the action will be considered timely for reasons of equity.”

Cooper v. Tex. Wesleyan Univ., No. 05-99-00347-CV, 1999 WL 1179613, at *4 (Tex. App.—

Dallas Dec. 15, 1999, pet. denied) (not designated for publication). Equitable tolling is a court-

created doctrine “that may not apply if a statutory requirement is deemed jurisdictional.” In re

United Servs. Auto Ass’n, 307 S.W.3d 299, 311 (Tex. 2010). As previously noted, standing is a

component of subject matter jurisdiction; therefore, equitable tolling cannot be applied to confer

standing if the 90-day deadline is not met. See In re H.G., 267 S.W.3d at 124. As this court has

previously asserted, “If the Texas Legislature has not conferred subject matter jurisdiction on a



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trial court, the courts cannot mindlessly produce that result based on equity.” Id. at 125. Beverly’s

third issue is overruled.

                                           CONCLUSION

       Because Beverly lacks standing to bring a SAPCR to adjudicate the conservatorship of

N.M.B., the trial court’s order is affirmed.

                                                  Rebeca C. Martinez, Justice




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