REVERSE; RENDER and REMAND and Opinion Filed April 30, 2020




                                     S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                 No. 05-18-01324-CV

                   IN THE INTEREST OF D.D.A., A MINOR

                On Appeal from the 330th Judicial District Court
                             Dallas County, Texas
                     Trial Court Cause No. DF-17-03029

                         MEMORANDUM OPINION
                    Before Justices Molberg, Reichek, and Evans
                             Opinion by Justice Evans
        D.D.A.’s paternal grandmother, representing herself without an attorney,

brings this appeal challenging the trial court’s order granting a plea to the jurisdiction

and dismissing her suit to modify non-parent conservatorship because she lacked

standing. No appellees’ brief has been filed. For the reasons set forth below, we

conclude the trial court erred in determining appellant lacked standing to bring her

suit. Accordingly, we reverse the trial court’s order, render judgment denying the

plea to the jurisdiction, and remand this case to the trial court for further proceedings

consistent with this opinion.
                                        BACKGROUND

       This appeal involves three separate suits affecting parent-child relationship

(SAPCR) regarding the child D.D.A. The first suit was brought by the Texas

Department of Family and Protective Services in the 323rd Judicial District Court

of Tarrant County seeking, among other things, termination of Mother’s and Father’s

parental rights to D.D.A. After a jury trial, however, only Father’s parental rights

were terminated.

       Although not entirely clear, it appears a second case was subsequently

initiated to modify orders in that case. On July 7, 2015, the presiding judge of the

323rd signed an “Order Modifying Managing Conservatorship” in cause number

323-97474J-12 replacing the Department with D.D.A.’s great aunt and great uncle

as his managing conservators.1 The July 7 order also named Mother as D.D.A.’s

possessory conservator, giving her a minimum of two supervised visits per month

“at the discretion of the Managing Conservator(s).” Finally, the July 7 order

provided in relevant part:

       Dismissal of Other Court-Ordered Relationships

              Except as otherwise provided in this order, any other existing
       court-ordered relationships with the child the subject of this suit are
       hereby terminated and any parties claiming a court ordered relationship
       with the child are dismissed from this suit.



   1
      Although this order is not in the clerk’s record, the trial court’s order granting the plea to the
jurisdiction and dismissing appellant’s suit makes reference to the order. Appellant has also included a
copy of the court order in the appendix to her brief.
                                                 –2–
        A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO
        APPEAL.

Appellant was not a named party to this order, nor did she file a petition in

intervention in the lawsuit filed by the Department from which this July 7, 2015

order arose.

        Appellant did, however, file a separate suit in the same district court in Tarrant

County under cause number 323-100117-14 seeking to terminate Mother’s parental

rights and adopt D.D.A.2 The trial court initially dismissed appellant’s suit for lack

of standing. But a divided panel of the Fort Worth Court of Appeals reversed the

trial court’s dismissal and remanded the case to the trial court. See In re D.A., No.

02-14-00265-CV, 2015 WL 510255 at *3 (Tex. App.—Fort Worth Feb. 5, 2015, no

pet.) (mem. op.). On remand, the trial court held a hearing on appellant’s petition

for termination and adoption. Immediately thereafter, the court signed a judgment

dismissing appellant’s lawsuit, but granting her a minimum of one supervised visit

per month with D.D.A. This order is also dated July 7, 2015, the same date as the

order modifying managing conservatorship in the Department’s lawsuit.3 Appellant

attempted to appeal the July 7 order dismissing her suit, but the Fort Worth Court of


    2
    The record does not indicate when appellant originally filed this suit, but according to the cause
number, it appears to have been filed in 2014.
    3
     This order does not appear in our clerk’s record. Appellant has attached a copy of it to her brief in the
appendix. Nevertheless, in an appendix to her appeal for de novo review by the 330th District Court of the
associate judge’s order dismissing her case, appellant attached a transcript of proceedings in the 323rd
District Court in which she was interrogated by that trial court and opposing counsel on the basis that she
had agreed to one visit per month in the July 7 order by signing it. So the content of the order is not in
dispute.
                                                    –3–
Appeals dismissed the appeal for want of jurisdiction because the notice of appeal

was untimely filed. See In re D.A., No. 02-15-00346-CV, 2015 WL 9244637 at*1

(Tex. App.—Fort Worth, Dec. 17, 2015, no pet.) (mem. op.).

        Two years later, in June 2017, appellant filed a third suit in the 330th Judicial

District Court in Dallas County.4 This is the suit from which this appeal arises.

Entitled “Motion to Modify Non-Parent Conservatorship,” appellant sought to be

named managing conservator of D.D.A. Appellant alleged she was a party that had

been substantially affected by the July 7, 2015 orders and that the modification was

necessary because “the child’s present circumstances would significantly impair the

child’s physical health or emotional development.”

        In September 2018, D.D.A’s then managing conservators, his great aunt and

great uncle, filed a plea to the jurisdiction and motion to dismiss appellant’s Dallas

lawsuit for lack of jurisdiction alleging that appellant lacked standing. Appellant

filed a response to the motion. An associate judge heard the motion on September

24, 2018. Appellant appeared by telephone. The associate judge signed an order

granting the plea and dismissing appellant’s suit. Appellant filed a request for de

novo review that was denied on October 17, 2018. This appeal followed.




    4
      The presiding judge in 323rd district court in Tarrant County granted appellant’s motion to transfer
venue to Dallas County in cause number 323-100117-14 in a petition for a protective order appellant filed
in Dallas County on February 13, 2017 based on D.D.A.’s current residence.
                                                  –4–
                                             ANALYSIS

        In her first issue, appellant generally contends the trial court erred in

dismissing her suit for lack of standing. “Standing is a component of subject matter

jurisdiction and a constitutional prerequisite to maintaining a lawsuit under Texas

law.” In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). As the

person asserting standing, appellant had the burden to allege and prove the

applicable statute conferring standing. See In re S.M.D., 329 S.W.3d 8, 12–13 (Tex.

App.—San Antonio 2010, pet. dism’d.). Appellant argues she has standing under

sections 102.004(a)(1) and 156.002 of the Texas Family Code.5 See TEX. FAM. CODE

ANN. §§ 102.004(a)(1); 156.002. After reviewing the record, we conclude appellant

established standing under section 156.002.

        In addressing a plea to the jurisdiction, the trial court must consider evidence

and review the merits of the legal claims only to the extent necessary to determine

whether it possesses subject matter jurisdiction over the case. See In re I.I.G.T., 412

S.W.3d 803, 806 (Tex. App.—Dallas 2013, no pet.). Where, as here, the trial court

makes no separate findings of fact or conclusions of law, we imply all necessary

findings in support of the judgment that are supported by the record and review the




    5
     In her appellate brief, appellant relies on 156.002(b) rather than 156.002(a), although she did assert
subsection (a) as a basis for standing in her petition and in her response to the plea to the jurisdiction.


                                                   –5–
implied findings for legal and factual sufficiency.6 Id. We review de novo the trial

court’s implied conclusions of law. Id.

        Section 156.001 of the family code provides that a court with continuing,

exclusive jurisdiction may modify an order providing for the conservatorship,

support, or possession of or access to a child. FAM. CODE § 156.001. In relevant

part, section 156.002 of the family code further provides that a party affected by an

order may file a suit for modification in the court with continuing, exclusive

jurisdiction. Id. § 156.002(a). In In re Martin, this Court held that grandparents who

had obtained an order giving them the right to thirty-five hours of monthly visitation

and the right to be notified regarding extracurricular activities had standing under

section 156.002(a) to proceed with their petition to modify the parent-child

relationship, seeking to be named joint managing conservators with the right to

designate their grandchild’s primary residence. 523 S.W.3d 165, 170 (Tex. App.—

Dallas 2017, no pet.). This Court reasoned that there was no dispute that the

grandparents were “parties” to the 2012 judgment they sought to modify and they

were “affected” by the order because they were awarded visitation and the right to

be notified regarding their grandchild’s activities. Id.

         The question here is whether appellant, like the grandparents in Martin, is

likewise a party affected by an order. In her petition, appellant alleged she is a party

    6
     Appellant requested findings of fact and conclusions of law on October 22, 2018. Our record,
however, contains no findings and there is nothing to reflect that appellant filed a notice of past due findings
pursuant to rule 297 of the Texas Rules of Civil Procedure.
                                                     –6–
that has been substantially affected by the July 7, 2015 orders and sought to modify

the orders by her petition seeking to modify non-parent conservatorship of D.D.A.

Although not technically a party to the order naming the great aunt and great uncle

as D.D.A.’s managing conservators, appellant was a party to the order in cause

number 323-100117-14 entered the very same day, July 7, 2015, by the same trial

court in her own lawsuit involving the same child. That order dismissed her lawsuit,

but it also provided appellant with a minimum of one visit per month with D.D.A.

While the two orders were rendered in separate cause numbers–one naming

managing conservators and the other giving appellant access rights to the child–we

conclude that given the unique procedural posture of this case, and when viewed

together as they must, the orders reflect that appellant is a party who is affected by

the orders. See In re Martin, 523 S.W.3d at 170. In addition, the case with the order

providing appellant one visit per month was the case the district court in Tarrant

County ordered transferred to Dallas County. Accordingly, appellant had standing

to proceed with her modification suit pursuant to section 156.002(a) of the family

code. Our resolution of this appeal on this basis makes it unnecessary to address

appellant’s other standing arguments.

                                  CONCLUSION

      Based on the record before us, we conclude appellant has standing to file a

suit for modification. We reverse the trial court’s order granting appellees’ plea to

the jurisdiction and dismissing appellant’s modification suit, render judgment
                                         –7–
denying the plea, and remand this case to the trial court for further proceedings

consistent with this opinion.




                                         /David Evans/
                                         DAVID EVANS
                                         JUSTICE

181324F.P05




                                      –8–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

IN THE INTEREST OF D.D.A., A                   On Appeal from the 330th Judicial
MINOR                                          District Court, Dallas County, Texas
                                               Trial Court Cause No. DF-17-03029.
No. 05-18-01324-CV                             Opinion delivered by Justice Evans,
                                               Justices Molberg and Reichek
                                               participating.

       In accordance with this Court’s opinion of this date, the order of the trial
court granting appellees’ plea to the jurisdiction and dismissing appellant’s suit is
REVERSED and judgment is RENDERED that appellees’ plea to the jurisdiction
is denied. We REMAND this case to the trial court for further proceedings
consistent with our opinion.

      It is ORDERED that appellant Melinda Coffelt recover her costs of this
appeal from appellees Stacia Hartfield and Albert Hartfield.


Judgment entered April 30, 2020




                                         –9–
