AFFIRM; and Opinion Filed July 27, 2018.




                                                                  In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                       No. 05-17-00530-CV

                                    IN THE INTEREST OF Y.Z.C.T., A CHILD

                                On Appeal from the 303rd Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. DF-15-01039

                                          MEMORANDUM OPINION
                       Before Chief Justice Wright, Justice Francis, and Justice Thomas1
                                          Opinion by Justice Thomas
           Mother appeals the trial court’s judgment appointing Mother and Paternal Aunt as joint

managing conservators, Paternal Grandmother as a non-parent possessory conservator, and Father

as a possessory conservator of Y.Z.C.T. In a single issue, Mother contends the judgment is void

because Paternal Aunt did not sufficiently plead or prove that she had standing to seek

conservatorship of Y.Z.C.T. at the time she filed suit. We overrule Mother’s issue and affirm the

trial court’s judgment.

                                                             Background

          Paternal Aunt filed a suit affecting the parent-child relationship (SAPCR) on January 22,

2015 seeking, among other things, conservatorship of Y.Z.C.T. Paternal Aunt alleged she had

standing to bring the SAPCR because she was “the person with actual possession of the child.”



   1
       The Hon. Linda Thomas, Chief Justice (Ret.), sitting by assignment.
Paternal Aunt did not specify a particular standing statute in her original petition. She and Paternal

Grandmother later filed a supplemental petition adding Paternal Grandmother as a party seeking

conservatorship of Y.Z.C.T. They did not allege any additional jurisdictional facts.

           At trial, Mother testified that she was served with the pleadings in the case while she was

incarcerated in Henderson, Texas. According to Mother, while she was incarcerated, Paternal

Aunt, Paternal Grandmother, and Maternal Grandmother took care of Y.Z.C.T. At the time,

Paternal Grandmother and Maternal Grandmother lived together. By the time of the trial in 2017,

Y.Z.C.T. was twelve years old, living with Paternal Aunt, and Mother’s supervised visitation had

been “lifted.” Y.Z.C.T. had not lived with Mother for six or seven years. Mother did not challenge

Paternal Aunt’s standing.

           After hearing the evidence, the trial court found, among other things, (1) Paternal Aunt and

Paternal Grandmother had actual care, custody, and control of Y.Z.C.T. for at least six months

prior to the filing of this case; (2) Mother was incarcerated when she was served with the petition;

and (3) Y.Z.C.T. had not resided with Mother for the last six years.

           Mother filed a motion for new trial challenging, for the first time, Paternal Aunt’s standing

to file an original suit requesting managing conservatorship because she did not plead or prove

standing under section 102.004 of the Texas Family Code.2 The trial court conducted a hearing on

Mother’s motion.

           At that hearing, Maternal Grandmother testified that she has had “care, custody, and

control” of Y.Z.C.T. since she was born in September 2004. Maternal Grandmother and Paternal

Grandmother lived together with Y.Z.C.T. for about two years, until Maternal Grandmother moved

out in August of 2014. According to Maternal Grandmother, Y.Z.C.T. never lived with Paternal


     2
       Section 102.004 of the family code provides that a grandparent or another relative within the third degree of consanguinity may file an
original suit requesting managing conservatorship 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; or (2) both parents, the surviving parent, or the
managing conservator or custodian either filed the petition or consented to the suit. TEX. FAM. CODE ANN. § 102.004(a) (West Supp. 2017).

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Aunt and Paternal Aunt’s statements to the trial court and to social services that Y.Z.C.T. had been

in Paternal Aunt’s possession since Y.Z.C.T. was two years old were not true. Rather, Maternal

Grandmother said Paternal Aunt saw Y.Z.C.T. “every now and then.” She also acknowledged, in

response to counsel’s question, that the social study contained an entry that Y.Z.C.T. did not

“spend much time with [Paternal] Aunt.”3 Maternal Great-Grandmother and Mother corroborated

this testimony, saying Y.Z.C.T. had always lived with Maternal Grandmother and had never lived

with Paternal Aunt.                   Similarly, a long-time friend and former roommate of Maternal

Grandmother’s testified that Y.Z.C.T. “had never lived” with Paternal Aunt. Mother did admit,

however, that Paternal Aunt and Paternal Grandmother had always established Y.Z.C.T.’s address

for school purposes.

             Paternal Grandmother testified the previous testimony was not truthful. According to

Paternal Grandmother, she and Paternal Aunt have had possession of Y.Z.C.T. since she was three

years old and that Paternal Grandmother and Paternal Aunt have “always had [Y.Z.C.T.] in

school.” They used Paternal Grandmother’s address for school because she had a house and

Paternal Aunt had an apartment. Paternal Grandmother began to explain that Y.Z.C.T was in

Paternal Aunt’s possession because Paternal Grandmother had to “be at work at 6:00 a.m., so she

would stay –” but did not finish her explanation after the trial court sustained an objection to her

testimony as nonresponsive. Paternal Grandmother testified she and Paternal Aunt have always

been a “major part” of Y.Z.C.T.’s life and she and Paternal Aunt were more involved than Mother.

Paternal Grandmother testified that she and Paternal Aunt provide for and participate in Y.Z.C.T’s

extracurricular activities, including “select cheerleading.”                                        Neither Mother nor Maternal

Grandmother financially contribute to those expenses and “rarely” attend those outings.



      3
        Although the trial court took judicial notice of the “entire file” during the hearing on the motion for new trial, our record does not contain
the social study nor a request to the District Clerk for the social study to be included in the clerk’s record.

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           Following the hearing, the trial court denied Mother’s motion for new trial. This appeal

followed.

                                                               Applicable Law

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

I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.—Dallas 2013, no pet.); In re S.S.J.-J., 153 S.W.3d 132,

134 (Tex. App—San Antonio 2004, no pet.). Standing is implicit in the concept of subject-matter

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because

subject-matter jurisdiction is essential to the authority of a court to decide a case, a party’s lack of

standing deprives the court of subject-matter jurisdiction and renders subsequent trial-court action

void. Id.

           Here, the trial court found that it had jurisdiction of the case and all the parties, but made

minimal findings regarding its determination of standing. Consequently, we must draw every

reasonable inference and imply such fact findings as necessary to support the legal conclusion that

Paternal Aunt had standing. In re M.P.B., 257 S.W.3d 804, 808 (Tex. App—Dallas 2008, no pet.).

We review the trial court’s conclusion that Paternal Aunt had standing de novo; but, to the extent

relevant facts are disputed, we review the implied findings of fact supporting that conclusion for

legal and factual sufficiency. Id.4

           When, as here, standing has been conferred by statute, the statute itself serves as the proper

framework for a standing analysis. In re Sullivan, 157 S.W.3d 911, 915 (Tex. App—Houston [14th

Dist.] 2005, orig. proceeding) (citing Tex. Dep’t. of Protective and Regulatory Servs. v. Sherry, 46

S.W.3d 857, 859‒61 (Tex. 2001)). When standing has been sufficiently alleged in the pleadings,

and the jurisdictional challenge attacks the existence of jurisdictional facts, the trial court considers



      4
        When an issue of standing is resolved prior to trial, in contrast, we take as true all evidence favorable to parties alleging standing, indulging
every reasonable inference and resolving any doubts in their favor. If there is a fact question regarding standing, that question must be resolved by
the fact finder. See In re M.P.B., 257 S.W.3d at 808; In re M.J.G., 248 S.W.3d 753, 758 (Tex. App—Fort Worth 2008, no pet.).

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the evidence submitted by the parties to resolve the jurisdictional issues raised. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The burden of proof on the issue of standing is on

the party asserting standing. In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet.

dism’d). In a family-law case, when the petitioner is statutorily required to establish standing with

“satisfactory proof,” the evidentiary standard is a preponderance of the evidence. Id., In re A.M.S.,

277 S.W.3d 92, 96 (Tex. App—Texarkana 2009, no pet.). The petitioner must show the facts

establishing standing existed at the time suit was filed in the trial court. Tex. Ass’n of Bus., 852

S.W.2d at 446 n.9; In re S.M.D., 329 S.W.3d at 13.

       Texas Family Code section 102.003(a)(9) grants standing to file a suit affecting the parent-

child relationship to “a person, other than a foster parent, 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) (West Supp. 2017). In computing

the time under subsection (9), the trial 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.” Id. § 102.003(b). Under section 102.003(a)(9), a nonparent

has actual care, control, and possession of a child 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. In the Interest of H.S., No. 16-0715, 2018 WL 2993873, at *7 (Tex. June 15, 2018).

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.




                                                –5–
        A determination of standing under this section is necessarily fact specific and resolved on

an ad hoc basis. In re M.P.B., 257 S.W.3d at 809. Accordingly, such determinations are situations

where the trial court is the sole judge of witness credibility and the weight to be given their

testimony and we do not disturb the trial court’s resolution of evidentiary conflicts that turn on

credibility determinations or the weight of the evidence. See In re I.I.G.T., 412 S.W.3d at 806

(citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) and Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).

        Here, we acknowledge the evidence regarding standing is minimal and conflicting.

Nevertheless, when viewed under the above standard, we conclude it supports the trial court’s

conclusion that Paternal Aunt had standing to file her petition seeking conservatorship of Y.Z.C.T.

The trial court, as the factfinder, was free to believe Paternal Grandmother’s testimony that she

and Paternal Aunt had care, control, and possession of Y.Z.C.T. since she was three years old,

Paternal Grandmother and Aunt had established Y.Z.C.T.’s residence so that she could attend

school where Paternal Aunt worked, and Paternal Grandmother and Paternal Aunt were very

involved in Y.Z.C.T’s life including decisions and participation in Y.Z.C.T.’s education and

extracurricular activities.   We overrule Mother’s sole issue.

        Accordingly, we affirm the trial court’s judgment.




                                                   /Linda Thomas/
                                                   LINDA THOMAS
                                                   JUSTICE, ASSIGNED

170530F.P05




                                                –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF Y.Z.C.T., A                       On Appeal from the 303rd Judicial District
 CHILD                                                Court, Dallas County, Texas
                                                      Trial Court Cause No. DF-15-01039.
 No. 05-17-00530-CV                                   Opinion delivered by Justice Thomas. Chief
                                                      Justice Wright and Justice Francis
                                                      participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees Chataqua Latrell Smith and Angela Miller recover their
costs of this appeal from appellant Lashondra Dixon.


Judgment entered this 27th day of July, 2018.




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