                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00066-CV
        ______________________________



         IN RE: VANESSA MARIE REED




           Original Mandamus Proceeding




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       Vanessa Marie Reed, mother of the children involved, has filed a petition for writ of

mandamus asking this Court to order the trial judge to set aside an order overruling her plea to the

jurisdiction and to dismiss with prejudice the petition for conservatorship filed by the children’s

grandfather and his wife. In her plea to the jurisdiction, Reed argues that the trial court had no

subject-matter jurisdiction because the opposing parties lacked standing to file a suit affecting the

parent-child relationship. TEX. FAM. CODE ANN. §§ 102.003–.004 (West 2008).

       We grant the extraordinary relief of mandamus only when the trial court has clearly abused

its discretion and the relator lacks an adequate appellate remedy. In re Team Rocket, L.P., 256

S.W.3d 257 (Tex. 2008) (orig. proceeding). With respect to the resolution of factual issues or

matters committed to the trial court’s discretion, the reviewing court may not substitute its

judgment for the trial court. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2005) (orig. proceeding).

The relator must establish that the trial court could reasonably have reached only one decision.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

       Standing is a prerequisite to subject-matter jurisdiction, which is essential to a court’s

power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A

party may challenge the absence of subject-matter jurisdiction by a plea to the jurisdiction and by

other procedural vehicles. Id. at 554. A plea to the jurisdiction is a dilatory plea, the purpose of

which is to defeat the alleged claims, without regard to whether they have merit. Id. The



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purpose of a dilatory plea is not to force a plaintiff to preview its case on the merits, but to establish

a reason why the merits of its case should never be reached. Id. The Texas Supreme Court has

emphasized that a court should not decide standing issues based on its views of the merits:

        In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but
        must consider only the plaintiffs’ pleadings and the evidence pertinent to the
        jurisdictional inquiry. When we consider a trial court’s order on a plea to the
        jurisdiction, we construe the pleadings in the plaintiff’s favor and look to the
        pleader’s intent.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (citations omitted). The court

should confine itself to the evidence relevant to the jurisdictional issue. In re Sullivan, 157

S.W.3d 911, 915 (Tex. App.––Houston [14th Dist.] 2005, orig. proceeding).

        Section 102.003(a)(9) of the Texas Family Code provides in relevant part that an original

suit may be filed by a person ―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). The statute further states:

                (b)     In computing the time necessary for standing under Subsections
        (a)(9), (11), and (12), the court may not require that the time be continuous and
        uninterrupted but shall consider the child’s principal residence during the relevant
        time preceding the date of commencement of the suit.

TEX. FAM. CODE ANN. § 102.003(b). The court found that the grandfather and his wife had

standing because the children had been ―in the continuous possession of the Petitioners in excess

of six months prior to filing this petition, and the children’s present circumstances with

Respondent would significantly impair the children’s physical health or emotional development.‖


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         In the petition by the children’s grandfather and his wife, it was alleged that the children

had been in their continuous possession for over six months and that their present circumstances

would significantly impair the children’s physical health or emotional development.                              They

support the petition with an affidavit stating that Reed (respondent/relator) was addicted to alcohol

and various controlled substances and that she has been physically abusive to the children. They

further stated in the affidavit that they had observed Reed and her boyfriend, Dan Light, while they

believed both to be under the influence of alcohol or drugs, driving with the children in the vehicle.

         The petition was signed April 8, 2011,1 an answer was filed, and the court conducted an

evidentiary hearing on April 21. The court issued its order denying the plea to the jurisdiction on

May 4, 2011.

         At the evidentiary hearing, the grandfather testified that Reed had lived with Light in the

house next door for about six months, and before that Reed and the two children had lived in his

house. He testified that even after Reed moved next door, the children stayed with him and his

wife, that one girl spent a lot of time at his house overnight, and that the other one only

occasionally spent the night at Reed’s house. He testified Reed had a job out of town and that the

children stayed with them, with either a grandparent or Reed taking them to school and a

grandparent picking them up. He testified that he and his spouse had been providing for these two




1
 The copies provided were certified by the district clerk as being part of the file in this case, but the documents were
not file-marked by the clerk when received.

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grandchildren—providing care, food, clothing, and shelter––and that they had control over the

children for the last six months continuously.

        Reed testified that the children had a room in her house and that they had lived with her the

last six months. She testified that she and the children began living with her father in July 2009,

and did so through March 2010. By the time of the hearing, Reed had been living in a separate

house, next door to her father and stepmother, for approximately thirteen months.

        Cristy Brown, a Child Protective Services worker who was working with Reed testified

that she had been working with her since 2006, but no details about the nature of the contact were

elicited.

        The court concluded that the grandparents, though they did not have exclusive control over

the children, had at least fifty percent of the control, and denied Reed’s plea to the jurisdiction.

        The pleadings and evidence elicited in the hearing held to determine standing do not show

exclusive possession of the children by the petitioners. They both show, however, that the

children spent an extraordinary amount of time with the petitioners, and that the petitioners

exercised a high degree of care and control of the children.

        The statute does not require exclusive possession. The question is whether the court

abused its discretion by determining that the petitioners had sufficient care, control, and possession

of the children over the past six months to have standing to bring this suit. The pleadings and

evidence are such that we cannot conclude that the trial court could reasonably have reached only



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one conclusion; thus, we will not invade the trial court’s determination on these factual matters.

See In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.) (child lived with

grandmother for three months, then moved to nearby apartment with mother; afterward, child

spent significant time with grandmother––every weekend, holidays, spent more time with

grandmother than at mother’s apartment; grandmother was significantly involved in raising child

and as much or more caregiver than mother––held to establish standing).

       In addition, under Section 102.004(a)(1) of the Texas Family Code, the grandfather may

have standing to bring suit if there is satisfactory proof that ―(1) 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).

       If sufficient proof is shown, this would authorize standing by the grandfather. The

affidavit of the grandfather and his wife states facts that would support such a conclusion.

Counsel questioned Reed at length, eliciting testimony that since 2005, she had pending criminal

charges in Georgia of cruelty to children in the second degree. Reed acknowledged that she and

Light were living together (with his thirteen-year-old son), but stated that she had not seen Light

abuse the children, although she had seen him hit his dog (Light picked up the dog’s chain and

―popped‖ her). Photographs of the children taken by the grandfather’s wife were introduced,

showing what appeared to be bruises and whelps across the face of one child and the legs of




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another. There was also evidence about the condition of the mother’s house, which was described

as filthy.

        The mother testified that things had improved since the photographs were taken. She

acknowledged that she had formerly used methamphetamine, but stated that she had not done so

for more than eight years. When asked if she had an explanation for the apparent bruising of the

children, she had none. She also testified that she did not leave the girls alone with Light because

his daughter had claimed that something bad had happened, and Reed wanted to avoid allowing a

situation where her own daughters could make such claims—and also to keep her stepmother from

complaining about it. She denied that a child had been thrown into bed by the hair by Light—she

did not believe that it had happened.

        The grandfather testified that his nine-year-old son had told him the bruises on one girl may

have resulted ―from when Dan Light picked the baby up by the arm and the leg and threw her in her

bed because she would not stop crying.‖ The grandfather also testified that he saw Light pulling

his dog off a pig, picking it up with the collar and hitting it with his fist in the head. He testified

that he had concluded that the children had been abused because of statements made by the

children (the two at bar, and three others). He also stated that in the ten days before the hearing

that the children had been with them, the mother had made no effort to contact the children.

        We have reviewed the pleadings and the evidence introduced that is pertinent to the

jurisdictional inquiry. Blue, 34 S.W.3d at 554–55. In so doing, we have confined ourselves to



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the evidence relevant to the jurisdictional issue. Sullivan, 157 S.W.3d at 915. We cannot find

that the trial court clearly abused its discretion.

        We deny the petition for writ of mandamus.




                                                Jack Carter
                                                Justice

Date Submitted:         August 3, 2011
Date Decided:           August 4, 2011




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