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


                  No. 06-13-00026-CV




        IN RE: KAREN NICOLE CRUMBLEY




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                                   OPINION
            The 76th Judicial District Court of Titus County, Texas, appointed Karen Nicole

Crumbley, mother of the child involved, and Crystal Jane Schane, the child’s maternal aunt, as

temporary joint managing conservators, 1 with Crumbley having the right to establish the child’s

primary residence within Titus County. Crumbley has filed a petition for writ of mandamus

asking this Court to order the trial court to set aside its temporary orders and to dismiss with

prejudice the petition for conservatorship filed by Schane. 2 In her plea to the jurisdiction,

Crumbley argues that the trial court had no subject-matter jurisdiction because Schane lacked

standing to file a suit affecting the parent-child relationship and that the trial court abused its

discretion in appointing Schane as a joint managing conservator. See TEX. FAM. CODE ANN.

§ 102.003 (West Supp. 2012), § 102.004 (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, 259 (Tex. 2008) (orig. proceeding) (citations omitted). 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.

2004) (orig. proceeding) (per curiam). 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).
1
 The parties were appointed joint managing conservators, as opposed to one party being named managing
conservator and the other possessory conservator.
2
    At the time of these proceedings, the father of the child was incarcerated.
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I.     Standing

       A writ of mandamus can be used to raise a complaint that another party lacked standing

in cases where a court has ordered a fit parent to divide possessory rights with a nonparent. See

In re Wells, 373 S.W.3d 174 (Tex. App.—Beaumont 2012, orig. proceeding); see also In re

Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding) (“Because

temporary orders in suits affecting the parent-child relationship are not appealable, a petition for

a writ of mandamus is an appropriate means to challenge them.”); see also generally In re

Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding) (per curiam) (holding

mandamus relief appropriate to set aside temporary orders that divest fit parent’s possession of

children in violation of law).

       Standing, which is implicit in the concept of subject-matter jurisdiction, is a threshold

issue in a child custody proceeding. See In re SSJ–J, 153 S.W.3d 132, 134 (Tex. App.—San

Antonio 2004, no pet.); see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

443–44 (Tex. 1993). Whether a party has standing to pursue a cause of action is a question of

law. See SSJ–J, 153 S.W.3d at 134. In our de novo review of the trial court’s determination of

standing, we must take as true all evidence favorable to the challenged party, indulge every

reasonable inference, and resolve any doubts in the challenged party’s favor. See Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Hobbs v. Van Stavern, 249

S.W.3d 1, 3 (Tex. App.—Houston [1st Dist] 2006, pet. denied).

       The Texas Supreme Court has emphasized that a court should not decide standing issues

based on its views of the merits:
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       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) (footnote

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).

       In her petition for conservatorship, Schane alleged that she met Section 102.003(a)(9)’s

requirements and that the appointment of Crumbley or the child’s father as conservators would

present “a serious and immediate question concerning the welfare of the child” and that such an

appointment “would significantly impair the physical health of the child’s emotional

development.” In her affidavit attached to the petition, Schane alleged that she had primary

custody and control of the child “for extended periods of time,” that the child has lived with her




                                                4
since 2005, that Crumbley has a history of drug abuse and living with a known drug dealer and

user, and that Crumbley has been threatening to take the child out of Schane’s care.

         Schane testified that she started caring for the child in February 2005, when the child was

about six months old. The child lived with Schane and her husband, Ken, and they took care of

all of the child’s daily needs as if she were their own child. After Ken died in June 2011, Schane

continued to care for the child. She testified that Crumbley only saw the child five or six times

during 2005. According to Schane, from 2005, when she took possession of the child at the age

of six months, through August 2011, when the child started school at the age of six years,

Crumbley’s visits to see the child were very infrequent, ranging from one-half dozen visits per

year to just under two dozen visits per year. All totaled, over that six and one-half year period,

from 2005 through August 2011, Crumbley had the child less than 100 days.

         After the child started attending school, Crumbley’s periods of possession became more

frequent, and she started taking the child for several days at a time. However, Schane asserted

that she still had possession of the child for about two-thirds of each month, including almost

every weekend, and that during the two summers when the child was out of school for the

months of June, July, and part of August, Schane claimed to have had continuous and exclusive

possession of her. Schane testified that this pattern of possession began when the child started

school and has continued until she filed her petition for conservatorship two and one-half years

later.




                                                  5
        The trial court held that Schane “had actual care, control and possession of the child . . .

for at least six (6) months ending not more than 90 days preceding the filing of [the] [p]etition”

and denied Crumbley’s plea to the jurisdiction.

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

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

possession of the child over a statutorily sufficient period (at least six months) to have standing

to bring the suit. Based on the pleadings and evidence, we cannot conclude that the trial court

could reasonably have reached only one conclusion; thus, we will not disturb the trial court’s

determination on this factual matter. 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 was held to establish

standing).

        The pleadings filed in this case and the evidence elicited at the hearing to determine

standing do not show exclusive possession of the child by the petitioner. They do show,

however, that the child spent an extraordinary amount of time with the petitioner and that the

petitioner provided a significant amount of care for and exercised a high degree of control over

the child.

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

jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). In

so doing, we have confined ourselves to the evidence relevant to the jurisdictional issue.



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Sullivan, 157 S.W.3d at 915. We cannot find that the trial court clearly abused its discretion and,

therefore, overrule Crumbley’s first point of error.

II.    Conservatorship

       The trial court appointed Schane and Crumbley as temporary joint managing

conservators with Crumbley having the right to establish the child’s primary residence. In her

second point of error, Crumbley contends that the trial court abused its discretion because there

was “no finding that appointment of [Crumbley] as sole managing conservator would

significantly impair the child’s physical health or emotional development.”

       In the sensitive context of child-custody proceedings, courts have regularly granted

mandamus relief.     See, e.g., Powell v. Stover, 165 S.W.3d 322, 323 (Tex. 2005) (orig.

proceeding); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (orig. proceeding); In re Lau, 89

S.W.3d 757, 759–60 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding).                Lawsuits

involving child-custody determinations touch on parents’ constitutional interests and important

issues affecting children’s welfares. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Thus,

“[j]ustice demands a speedy resolution of child custody . . . issues.” Proffer v. Yates, 734

S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam) (granting mandamus relief from

trial court’s failure to transfer custody dispute to mandatory venue).

       There is a strong presumption that the best interest of a child is served if a natural parent

is appointed as a managing conservator. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990);

In re A.D.H., 979 S.W.2d 445, 447 (Tex. App.—Beaumont 1998, no pet.); see also TEX. FAM.

CODE ANN. § 153.131(a) (West 2008); Brook v. Brook, 881 S.W.2d 297, 299 (Tex. 1994). A
                                                 7
parent shall be appointed as sole managing conservator, or the parents as joint managing

conservators, unless the court finds the appointment would not be in the best interest of the child

because it would significantly impair the child’s physical health or emotional development. 3

TEX. FAM. CODE ANN. § 153.131(a). There must be evidence to support the logical inference

that some specific, identifiable behavior or conduct of the parent will probably cause that harm.

In re M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, writ denied).                             A trial court’s

conclusion that the parental presumption has been rebutted must be supported by specific

findings of fact identifying the factual basis for the finding, and the failure to make such findings

constitutes error. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.—Fort Worth 2009, no pet.);

Chavez v. Chavez, 148 S.W.3d 449, 459–60 (Tex. App.—El Paso 2004, no pet.).

        Schane argues that Section 153.131 must be read in conjunction with Section 153.373,

which provides, “The presumption that a parent should be appointed or retained as managing

conservator of the child is rebutted if the court finds that . . . the parent has voluntarily

relinquished actual care, control, and possession of the child to a nonparent . . . for a period of

one year or more, a portion of which was within 90 days preceding the date of intervention in or

filing of the suit . . .” and such an appointment is in the best interests of the child. TEX. FAM.

CODE ANN. § 153.373 (West 2008). 4


3
 Under Section 153.131, a nonparent may not be appointed a joint managing conservator without overcoming the
presumption as to both parents. TEX. FAM. CODE ANN. § 153.131. In this case, the father is not an issue because the
parental presumption has been overcome regarding the father, who is currently incarcerated and has a significant
drug history.
4
 The standing issue, previously discussed, required proof by the nonparent that she had actual care, control, and
possession of the child for at least six months ending not more than ninety days preceding the date of the filing of
                                                         8
        Here, the trial court appointed Schane and Crumbley as joint managing conservators and

found that such appointment was in the best interest of the child. But there are no express

findings that the appointment of Crumbley as sole managing conservator would significantly

impair the child’s physical health or emotional development or that she voluntarily relinquished

care, control, and possession of the child to Schane for a year or more, a portion of which was

within ninety days preceding the date of filing suit.

        When no express findings of fact are requested or filed, it is implied that the trial court

made all findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990) (per curiam). But many of the provisions in this judgment negate and conflict with a

“deemed” finding that the appointment of Crumbley would not be in the child’s best interest and

that such appointment would significantly impair the child’s physical health or emotional

development. For instance, the trial court named Crumbley a joint managing conservator with

the exclusive right to designate the primary residence of the child in Titus County, the right to

receive payments for support of the child, and the exclusive right to make decisions concerning

the child’s education. Schane was given possession of and access to the child in accordance with

the “Standard Possession Order.” Since the trial court appointed Crumbley as a joint managing

conservator, found that such was in the child’s best interest, and gave her the most important

rights concerning the child, we cannot deem that the trial court concluded her appointment would




the petition. By contrast, to overcome the parental presumption, the nonparent must show care, control, and
possession of the child for a period of one year or more, a portion of which was within ninety days preceding the
date of filing suit. The trial court made a finding on the first issue, but not the second.
                                                       9
not be in the child’s best interest or that the child’s health or development would be significantly

impaired.

       Even so, the parental presumption may also be rebutted if the court finds that the parent

has voluntarily relinquished actual care, control, and possession of the child to a nonparent for a

period of one year or more, a portion of which was within ninety days preceding the date of

filing suit. TEX. FAM. CODE ANN. § 153.373. The trial court made no finding on this issue. It is

implied that the trial court made all findings necessary to support its judgment. Lemons v. EMW

Mfg. Co. 747 S.W.2d 372, 373 (Tex. 1988) (per curiam). The judgment must be affirmed if it

can be upheld on any legal theory that finds support in the evidence. Worford, 801 S.W.2d at

109.

       Implied findings may be attacked for insufficiency of evidence. Abrams v. Jones, 35

S.W.2d 620, 627 (Tex. 2000). The evidence here, even looked at most favorably to support the

judgment, is insufficient to show Crumbley’s relinquishment of the care, control, and possession

of the child for any one-year period, any part of which was within the last ninety days preceding

the date of filing suit. See TEX. FAM. CODE ANN. § 153.373(1). In the ninety-day period

preceding filing suit (October 15 through January 15) Crumbley had actual care, control, and

possession of the child for twenty-seven days (thirty percent) and Schane had such care for sixty-

three days (seventy percent). It cannot be concluded that the mother, having actual care, control,

and possession of the child for thirty percent of the time, voluntarily relinquished the care,

control, and possession of the child during that period. Therefore, the evidence is insufficient to

overcome the parental presumption. We sustain Crumbley’s second point of error.
                                                10
       We conditionally grant the petition for writ of mandamus. The 76th Judicial District

Court of Titus County, Texas, is ordered to withdraw or vacate its February 6, 2013, order in the

suit affecting parent-child relationship. The writ will issue only if the trial court fails, within

twenty days of the date of this opinion, to take appropriate action in accordance with this

opinion.




                                             Jack Carter
                                             Justice

Date Submitted:       June 11, 2013
Date Decided:         June 12, 2013




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