                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-17-00321-CV

                         IN RE JULIE NICOLE FOSHEE


                               Original Proceeding



                          MEMORANDUM OPINION


       In this original proceeding, Relator Julie Nicole Foshee seeks a writ of mandamus

compelling Respondent, the Honorable Tracy Sorensen, Presiding Judge of the County

Court at Law of Walker County, to vacate her order denying Foshee’s plea to the

jurisdiction. In two issues, Foshee contends that the trial court abused her discretion

because the Real Parties in Interest failed to plead or prove facts showing they had

standing under sections 102.003 and 102.004 of the Family Code. We deny Foshee’s

petition.
                                       Background

        Foshee and her husband divorced in 2008. They had one child, R.F., who was born

in 2006. Foshee and her ex-husband were appointed joint managing conservators of R.F.,

and Foshee was given the authority to designate the child’s primary residence. On

October 27, 2014, Cheryl and Donald Lawrence, Foshee’s mother and step-father and the

Real Parties in Interest, filed a “Petition to Modify Parent-Child Relationship and

Application for Protective Order” in the same court and cause number of the original

SAPCR. The trial court issued ex parte temporary orders the same day, giving the

Lawrences managing conservatorship over R.F., along with the authority to designate his

place of residence. On December 4, 2014, all parties consented to the entry of temporary

orders that designated Cheryl Lawrence as the party authorized to designate R.F.’s

primary residence. Foshee included a handwritten note on the temporary orders that she

was not waiving the issue of standing. The temporary orders directed Foshee to submit

to a hair follicle test within seventy-two hours, which she eventually completed, testing

positive for the presence of methamphetamine and amphetamine. After Foshee retained

a new attorney in 2017, she filed a plea to the jurisdiction challenging the Lawrences’

standing.      A hearing was held on Foshee’s motion on May 24, 2017, and, after

supplemental briefs and affidavits were filed, the trial court denied the motion on July

21, 2017. No other evidence was introduced at the hearing, and the trial court did not

issue findings of fact and conclusions of law.



In re Foshee                                                                       Page 2
                                         Mandamus

        Mandamus is an extraordinary remedy that is available only when the trial court

has clearly abused its discretion and there is no adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36, 137 (Tex. 2004) (orig. proceeding). A

trial court abuses its discretion when it acts “without reference to any guiding rules or

principles,” or in an arbitrary or unreasonable manner. In re Garza, 544 S.W.3d 836, 840

Tex. 2018) (per curiam) (orig. proceeding).

        Mandamus is the appropriate mechanism to challenge temporary orders made

while a child custody modification suit is pending because such orders are interlocutory

and not appealable. In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding).

Mandamus is a particularly necessary avenue of relief when a party, such as a

grandparent, seeks to divest a parent of the care, custody, or control of his or her children.

Id., at 334-35; see also Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d

49 (2000) (plurality opinion) (parent’s interest in care, custody, and control of their

children is fundamental liberty interest that should not be lightly infringed).

                                   Plea to the Jurisdiction

        Whether a court has subject matter jurisdiction is a question of law properly raised

in a plea to the jurisdiction. Tex. Southern Univ. v. Mouton, 541 S.W.3d 908, 912 (Tex.

App.—Houston [14th Dist.] 2018, no pet.). We review a trial court’s ruling on a plea to

the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.




In re Foshee                                                                             Page 3
2004). When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear

the cause. Id. If the plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court considers any relevant evidence submitted by the parties when necessary

to resolve the jurisdictional issues raised. Texas A & M Univ. v. Starks, 500 S.W.3d 560,

567 (Tex. App.—Waco 2016, no pet.); see also Mouton, 541 S.W.3d at 912-13. If the evidence

creates a fact question regarding jurisdiction, then the trial court must deny the plea, and

the fact issue will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28.

                                           Standing

        A party seeking conservatorship of a child must have standing to seek such relief.

In re Tinker, 549 S.W.3d 747, 750 (Tex. App.—Waco 2017, orig. proceeding [mand.

denied]). “Generally, standing involves a threshold determination of whether a plaintiff

has a sufficient ‘justiciable interest’ in the suit’s outcome to be entitled to a judicial

determination.” In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). If a party does not have

standing, the court is deprived of subject matter jurisdiction and any subsequent actions

are void. Tinker, 549 S.W.3d at 750. Standing is a question of law that the court reviews

de novo. H.S., 550 S.W.3d at 155. The merits of the claims are not at issue. Id. “Thus, this

case is not about whether Grandparents will prevail in their suit; it is about whether they

may bring it in the first place.” Id.

        In evaluating standing, we construe the pleadings in the petitioner’s favor, but also

consider relevant evidence offered by the parties. Id.; see also In re Y.Z.C.T., No. 05-17-


In re Foshee                                                                             Page 4
00530-CV, 2018 WL 3599108, at *2 n.4 (Tex. App.—Dallas July 27, 2018, orig. proceeding)

(“When an issue of standing is resolved prior to trial, . . . we take as true all evidence

favorable to parties alleging standing, indulging every reasonable inference and

resolving any doubts in their favor.”). When, as here, the trial court makes no separate

findings of fact or conclusions of law, we imply the findings necessary to support the trial

court’s judgment. In re Hogard, No. 10-13-00246-CV, 2013 WL 5603853, at *1 (Tex. App.—

Waco Oct. 10, 2013, orig. proceeding). “We review the entire record to determine if the

trial court’s implied findings are supported by any evidence.” Id.

          In their supplemental petition, filed on May 31, 2017, the Lawrences assert they

have standing under sections 102.003(a)(9), 102.004, “and other provisions of the Texas

Family Code.” A grandparent, by statute, may file an original suit requesting managing

conservatorship under section 102.004(a), intervene in a pending suit under 102.004(b),

or seek relief under the general standing provisions of section 102.003. TEX. FAM. CODE

ANN. §§ 102.003; 102.004 (West Supp. 2018).1 Because we conclude that the trial court

properly found that the Lawrences had standing under section 102.003, we do not reach

whether standing was also permissible under section 102.004.

          Section 102.003 provides that suit may be brought by any person who has had

“actual care, control, and possession of the child for at least six months ending not more




1
    All subsequent statutory references are also to the Family Code.



In re Foshee                                                                          Page 5
than 90 days preceding the date of the filing of the petition. . . .” § 102.003(a)(9).2 The six-

month period need not be continuous and uninterrupted. § 102.003(b). The petitioner is

not required to establish that he or she has had exclusive care, custody or control of the

child nor that a parent has abdicated his or her parental rights. H.S., 550 S.W.3d at 158.

        [A] nonparent has “actual care, control, and possession of the child” under
        section 102.003(a)(9) if, for the requisite six-month time period, the
        nonparent served in a parent-like role by (1) sharing a principal residence
        with the child, (2) providing for the child’s daily physical and psychological
        needs, and (3) exercising guidance, governance, and direction similar to
        that typically exercised on a day-to-day basis by parents with their children.
        The statute does not require the nonparent to have ultimate legal authority
        to control the child, nor does it require the parents to have wholly ceded or
        relinquished their own parental rights and responsibilities.

Id. at 160.

        The facts of this case are remarkably similar to those presented in the H.S. opinion.

In their supplemental petition and attached affidavits, the Lawrences note that R.F. had

been in their care for a period greater than six months prior to the filing of their original

petition. The Lawrences specifically note that R.F. had been living with them from June

2014 to October 2014, when Foshee and R.F. moved in with them, and that R.F. had lived

with them off and on for several years. The Lawrences performed the following parental

duties for R.F.: paid his school tuition; took him to school in the mornings and picked



2
 The grandparents in H.S. were determined to have standing under section 102.003(a)(2) even though, like
the Lawrences, they filed a petition to modify an existing SAPCR rather than an original suit. Section
156.002(b) of the Family Code provides that “[a] person or entity, who at the time of filing, has standing to
sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction.”
§ 156.002(b).


In re Foshee                                                                                          Page 6
him up in the afternoons; purchased clothing, food and other necessities for him; took

him to and paid for doctor’s appointments; took him to extracurricular activities; made

decisions of legal significance for him; and basically assumed parental duties for him.

        Foshee submitted her own affidavit in which she contradicts some of the facts in

the Lawrences’ affidavits, specifically relating to the amount of time R.F. resided with the

Lawrences. While Foshee notes that she would spend time with R.F. each day, she does

not dispute that beginning at least in January 2014, R.F. spent most nights at the

Lawrences’ residence without her. See Foshee’s “Petition for Writ of Mandamus and

Prohibition,” p. 4. Foshee notes that she was employed from January 2014 through mid-

May 2014 at a job that required her to leave for work at 5:00 a.m. and prevented her from

arriving home until 7:00 p.m. Because of her hours, it was easier for R.F. to spend week

day nights with the Lawrences. Foshee also notes that she and R.F. moved in with the

Lawrences at the end of June 2014 after she lost her job. While Foshee spent time with

R.F. while he was residing with the Lawrences, she does not dispute that she did not

spend the nights there. Foshee also does not dispute the parental duties the Lawrences

performed for R.F.

        Based upon the foregoing, there was sufficient evidence before the trial court to

find that the Lawrences had standing as they had actual care, control, and possession of

R.F. for at least six months prior to the date they filed their original petition. The trial

court did not, therefore, abuse her discretion in denying Foshee’s plea to the jurisdiction.



In re Foshee                                                                          Page 7
As noted, this opinion is related solely to the issue of the Lawrences’ standing and has no

bearing on the merits of their claims.

        Foshee’s petition for writ of mandamus is denied. This matter will now be

returned to the trial court for further proceedings not inconsistent with this opinion.




                                                        REX D. DAVIS
                                                        Justice

Before Chief Justice Gray,
       Justice Davis, and
       Senior Justice Scoggins3
       (Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not
be issued.)
Petition denied
Opinion delivered and filed February 27, 2019
[OT06]




3
 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).


In re Foshee                                                                                      Page 8
