Opinion filed March 3, 2011




                                            In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00040-CV
                                        __________

                      IN THE INTEREST OF C.A.H., A CHILD


                          On Appeal from the 106th District Court

                                     Gaines County, Texas

                              Trial Court Cause No. 05-01-14883


                              MEMORANDUM OPINION
       Watasha Houston appeals from the trial court’s order modifying the parent-child
relationship between her and her son, C.A.H. We reverse and render in part, and we reverse and
remand in part.
                                       Background Facts
       C.A.H. is six years old. Houston and Cedric Johnson are the parents of C.A.H. In an
order dated December 20, 2004, Houston was granted the right to designate C.A.H.’s primary
residence. On April 8, 2008, Johnson filed a petition to modify the parent-child relationship. In
part, Johnson sought to be appointed as the managing conservator of C.A.H. with the right to
designate C.A.H.’s primary residence. Following a hearing, the trial court entered temporary
orders denying Johnson’s request for the exclusive right to designate C.A.H.’s residence.
       On May 5, 2008, Johnson filed a motion to modify the trial court’s temporary orders. He
sought to be appointed as C.A.H.’s temporary managing conservator with the right to determine
C.A.H.’s temporary residence. The trial court scheduled this motion for hearing on August 14,
2008. Houston’s counsel withdrew the day before the hearing, and Houston represented herself
at the hearing. Johnson called his sister, Sheila D. Mitchell, and Sheila’s husband, Willie Ray
(Ray-Ray) Mitchell, as witnesses at the hearing. Sheila and Ray-Ray are C.A.H.’s aunt and
uncle. After the evidence was concluded, the trial court found that grounds existed “to nullify”
the temporary orders that had allowed Houston to remain as the managing conservator with the
right to designate C.A.H.’s residence. The trial court stated, “Gosh, I wish he was your kid, Ray-
Ray and Sheila. Because, quite frankly, Mr. Johnson, I don’t think you’ve been a very good
provider either.” The trial court also stated, “I’m going to go out on a limb here” and then stated
that it would be naming Houston and Johnson as parent temporary joint managing conservators
and the Mitchells as nonparent temporary joint managing conservators and that the Mitchells
would have the right to designate C.A.H.’s residence. On September 3, 2008, the trial court
entered temporary orders to that effect.
       On January 7, 2009, Houston filed a petition to modify the temporary orders. She sought
to be appointed as C.A.H.’s sole managing conservator. Johnson’s counsel appeared as counsel
of record for the Mitchells. Although the Mitchells had not filed a petition in intervention in the
case, the trial court referred to them as intervenors in the record. On May 14, 2009, the trial
court heard Houston’s motion to modify the temporary orders, and on May 15, 2009, the trial
court entered an order denying the motion.
       On October 1, 2009, the trial court held the final hearing on Johnson’s petition to modify
parent-child relationship.   Houston was represented by new counsel at the hearing.            The
Mitchells had not filed a petition in intervention, but the trial court referred to them as
intervenors at the hearing. After the evidence was concluded, the trial court stated that “there
ha[d] been some improvement, certainly significant improvement, made in [Houston’s] life.”
However, the trial court concluded that it was in C.A.H.’s best interest for Houston and Johnson
to be named parent joint managing conservators and for the Mitchells to be named nonparent
joint managing conservators with the right to designate C.A.H.’s primary residence.            On
November 12, 2009, the trial court entered its final order. In the order, the trial court appointed
Houston and Johnson as parent joint managing conservators and the Mitchells as nonparent joint

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managing conservators, and the trial court gave the Mitchells the exclusive right to designate
C.A.H.’s primary residence. It is from this order that Houston appeals. Johnson and the
Mitchells are appellees in this cause.
                                          Issues on Appeal
       Houston presents two issues for review. In her first issue, she contends that the trial court
abused its discretion in appointing the Mitchells as nonparent joint managing conservators of
C.A.H. because they were never proper parties to the suit. In her second issue, she contends that
the trial court abused its discretion in appointing the Mitchells as nonparent joint managing
conservators of C.A.H. because the evidence was legally and factually insufficient to establish
that the Mitchells had standing to intervene in this suit.
                                              Standing
       In both of her issues, Houston argues that the Mitchells failed to satisfy their burden of
establishing their standing to intervene in this suit. Standing, which is implicit in the concept of
subject-matter jurisdiction, is a threshold issue in a custody proceeding. In re Vogel, 261 S.W.3d
917, 920 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); In re SSJ-J, 153 S.W.3d
132, 134 (Tex. App.—San Antonio 2004, no pet.). A party seeking conservatorship of a child
must have standing to seek such relief. In re SSJ-J, 153 S.W.3d at 134. In a suit affecting the
parent-child relationship, standing is governed by the Texas Family Code, and the party seeking
relief must allege and establish standing within the parameters of the language used in the
statute. In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, pet. denied). Standing
cannot be conferred by consent or waiver and may be raised for the first time on appeal. In re
A.M.S., 277 S.W.3d 92, 95 (Tex. App.—Texarkana 2009, no pet.).
       This is a modification suit. Section 156.002(b) of the Texas 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.” TEX. FAM. CODE ANN.
§ 156.002(b) (Vernon Supp. 2010). Section 102.004 governs standing for grandparents and
other persons. TEX. FAM. CODE ANN. § 102.004 (Vernon 2008). The Mitchells cite Section
102.004(b) in their brief. Section 102.004(b) provides, in part, as follows:
       [T]he court may grant a grandparent or other person deemed by the court to have
       had substantial past contact with the child leave to intervene in a pending suit
       filed by a person authorized to do so under this subchapter if there is satisfactory
       proof to the court that appointment of a parent as a sole managing conservator or

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        both parents as joint managing conservators would significantly impair the child’s
        physical health or emotional development.

In a family law case, when a party is statutorily required to establish standing with “satisfactory
proof,” the evidentiary standard is by a preponderance of the evidence. In re A.M.S., 277 S.W.3d
at 96 n.4.
        Section 102.004(b) applies to suits seeking managing conservatorships as well as those
seeking possessory conservatorships. Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); In re Hidalgo, 938 S.W.2d 492, 496 (Tex. App.—
Texarkana 1996, no writ). A party seeking to establish standing to intervene under Section
102.004(b) must provide satisfactory proof to the trial court that appointing one parent as the sole
managing conservator or both parents as joint managing conservators “would significantly
impair the child’s physical health or emotional development.” Section 102.004(b). A nonparent
seeking to overcome the presumption that a parent is to be named managing conservator of the
child faces the same burden. The nonparent must show that appointing a parent as managing
conservator or both parents as managing conservators “would significantly impair the child’s
physical health or emotional development.” See TEX. FAM. CODE ANN. § 153.131 (Vernon
2008). To meet this burden, the nonparent must offer evidence of specific acts or omissions of
the parent that demonstrate that an award of custody to the parent would result in physical or
emotional harm to the child.      Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990);
Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that
some specific, identifiable behavior or conduct of the parent will probably cause that harm.
Whitworth, 222 S.W.3d at 623. The link between the parent’s conduct and harm to the child may
not be based on evidence that merely raises a surmise or speculation of possible harm. Id.
        In this case, the Mitchells did not attempt to satisfy the statutory requirements for
intervention. They did not seek leave to intervene. They did not file a petition in intervention.
Thus, they never alleged any facts to support a claim that they had standing to intervene. Nor did
they present evidence at the final hearing that appointing Houston as C.A.H.’s sole managing
conservator “would significantly impair [his] physical health or emotional development.” See
Section 102.004(b). The Mitchells failed to meet their burden of alleging and establishing that
they met the statutory requirements for standing under Section 102.004(b) or any other section of



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the Family Code. Therefore, the trial court abused its discretion in appointing them as joint
managing conservators of C.A.H. Houston’s issues are sustained.
                                        This Court’s Ruling
       We reverse the trial court’s order in its entirety, render judgment that the Mitchells lacked
standing when the trial court entered its temporary orders and final order, and remand this case to
the trial court for further proceedings consistent with this opinion.




                                                              TERRY McCALL
                                                              JUSTICE


March 3, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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