                                         IN THE
                                 TENTH COURT OF APPEALS

                                        No. 10-13-00246-CV

                                      IN RE ANDREA HOGARD


                                  From the County Court at Law
                                     Walker County, Texas
                                      Trial Court No. 9627


                                  MEMORANDUM OPINION


          Andrea Hogard seeks mandamus relief from a temporary order that appoints her

parents, Jerald and Claudette Griffin,1 as temporary managing conservators of Andrea's

child, B.N.D. Andrea complains that the trial court abused its discretion by denying her

plea to the jurisdiction, by failing to dismiss the petition filed by the Griffins because the

attached affidavits were insufficient, by granting the temporary order giving the

Griffins the right to establish the domicile of B.N.D., by entering an order without

specific periods of possession and access, and by ordering that all periods of possession

by Andrea be supervised. Because we find that the trial court abused its discretion in

making the temporary order, we conditionally grant relief.

1   Jerald Griffin is now deceased.
          In her first issue, Andrea complains that the trial court abused its discretion by

denying her plea to the jurisdiction because the Griffins did not "properly plead or

properly prove facts" to establish that they had standing to file the petition seeking

conservatorship of B.N.D.

Propriety of Mandamus Relief

          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 Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (orig.

proceeding); Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding); In re

Levay, 179 S.W.3d 93, 95 (Tex. App.—San Antonio 2005, orig. proceeding). Generally, a

writ of mandamus will issue only to correct a clear abuse of discretion when there is no

adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.

proceeding).      ‚A trial court has no ‘discretion’ in determining what the law is or

applying the law to the facts,‛ and ‚a clear failure by the trial court to analyze or apply

the law correctly will constitute an abuse of discretion.‛ Id. at 839.

Standing

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

relief.    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 "[s]ubject matter


In re Hogard                                                                          Page 2
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.; In re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.]

2008, orig. proceeding).

       A party's standing to seek relief is a question of law we review de novo. Tex.

Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); S.S.J.-J., 153

S.W.3d at 134. When, as in this case, the trial court does not make separate findings of

fact and conclusions of law, we imply the findings necessary to support the judgment.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We review the entire record to

determine if the trial court's implied findings are supported by any evidence. In re

Vogel, 261 S.W.3d 917, 921-22 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).

       When 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 [mand. denied]); Smith, 260 S.W.3d

at 572. In the context of a suit affecting the parent-child relationship, standing is

governed by the Texas Family Code, and "[t]he 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). When standing

has been sufficiently alleged in the pleadings, and the jurisdictional challenge attacks

the existence of jurisdictional facts, the trial court considers the evidence submitted by


In re Hogard                                                                        Page 3
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 Pringle, 862 S.W.2d 722, 725 (Tex. App.—Tyler 1993, no writ).

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.

In re A.M.S., 277 S.W.3d 92, 96 (Tex. App.—Texarkana 2009, no pet.); Von Behren v. Von

Behren, 800 S.W.2d 919, 921 (Tex. App.—San Antonio 1990, writ denied). The petitioner

must show the facts establishing standing existed at the time suit was filed in the trial

court. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Vogel, 261

S.W.3d at 921. If the petitioner fails to meet his burden, the trial court must dismiss the

suit. In re M.T.C., 299 S.W.3d 474, 480 (Tex. App.—Texarkana 2009, no pet.).

       Standing to file a petition seeking conservatorship of a child relevant to this

proceeding is governed by section 102.004 of the Texas Family Code. That section

provides:

       § 102.004. Standing for Grandparent or Other Person

       (a) In addition to the general standing to file suit provided by Section
       102.003, a grandparent, or another relative of the child related within the
       third degree by consanguinity, may file an original suit requesting
       managing conservatorship if there is satisfactory proof to the court 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



In re Hogard                                                                          Page 4
       (2) both parents, the surviving parent, or the managing conservator or
       custodian either filed the petition or consented to the suit.

       (b) An original suit requesting possessory conservatorship may not be
       filed by a grandparent or other person. However, the 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 both parents as joint managing conservators would
       significantly impair the child's physical health or emotional development.

       (c) Possession of or access to a child by a grandparent is governed by the
       standards established by Chapter 153.

TEX. FAM. CODE ANN. § 102.004 (West 2008).

       In order to show "that appointment of the parent as managing conservator

would significantly impair the child, either physically or emotionally," the nonparent

must "offer evidence of specific actions or omissions of the parent that demonstrate 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) (construing section 153.131 of the

Family Code). To meet this burden, the nonparent must present evidence of "specific,

identifiable behavior or conduct of the parent," as shown by "specific acts or omissions,"

and evidence that such acts or omissions "will probably cause that harm." Critz v. Critz,

297 S.W.3d 464, 474 (Tex. App.—Fort Worth 2009, no pet.). The evidence must support

a logical inference that the specific, identifiable behavior or conduct will probably result

in the child being emotionally impaired or physically harmed. Whitworth, 222 S.W.3d at

623.   The link "may not be based on evidence which merely raises a surmise or
In re Hogard                                                                          Page 5
speculation of possible harm." Id.; In re M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler

1997, writ denied). The non-parent's burden is not met by evidence that shows they

would be a better custodian of the child or that they have a strong and on-going

relationship with the child. See Critz, 297 S.W.3d at 474-75. Further, evidence of past

misconduct alone is insufficient. Critz, 297 S.W.3d at 475. "If the parent is presently a

suitable person to have custody, the fact that there was a time in the past when the

parent would not have been a proper person to have such custody is not controlling."

May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied).

Facts

        The Griffins filed a petition seeking to be named the managing conservators of

B.N.D. and sought temporary orders to give them the right to establish the domicile of

B.N.D. B.N.D., who was ten years old at that time, had been residing with the Griffins

for over two months at that time.

        At the temporary orders hearing, the evidence showed that some months prior to

the hearing, Andrea's husband, Jeff Hogard, had pushed B.N.D.'s face into a toilet that

had not been flushed as punishment one time. Additionally, Jeff was mean to B.N.D.

and threatened to not sign a paper B.N.D. needed signed and returned to the school

unless she stopped telling Andrea about the things he was doing and saying to B.N.D.

Claudette Griffin stated that Andrea did not do anything regarding the toilet incident

when she found out about it shortly after it happened. However, according to Andrea,


In re Hogard                                                                       Page 6
she and B.N.D. left the home when she found out about the toilet incident, and it was

undisputed that the Griffins helped Andrea get an apartment for them when she

separated from Jeff.

       After approximately five and a half months in the apartment, Andrea and B.N.D.

moved out to live in the country in a mobile home owned by a man Andrea was

involved with named Billy Busa. While living there, B.N.D. was required to feed and

water a shoat that Billy used for training his dogs to hunt wild hogs. B.N.D. was

frightened of the shoat but Andrea forced her to be in the pen where the shoat was kept

to feed and water it. Andrea was present and testified that she would have been able to

lift B.N.D. out of the pen if there was trouble, but that the pen was designed in such a

way that the shoat could not get to B.N.D. while she was feeding it. Additionally,

B.N.D. did not like Billy or the way that her mother acted indifferently toward her

when Billy was around.

       B.N.D. had surgery to remove a tumor from her toe which required her to be out

of school for approximately four weeks prior to the incident with the signature on the

test, which was many months prior to the temporary orders hearing.          B.N.D. had

nightmares about Jeff and his adult son coming and harming her. According to an

affidavit executed by B.N.D. attached to the Griffins' pleadings, B.N.D. stated that she

wanted to remain with the Griffins because she felt safe and happy with them.




In re Hogard                                                                      Page 7
       Andrea had attempted to commit suicide twice in 2007, and was away from the

residence with Jeff because she worked 70-100 hours a week at multiple jobs. B.N.D.

was left in Jeff's care due to Andrea's work schedule. There was no evidence of other

suicide attempts by Andrea or other mental illness. Andrea testified that she had been

treated for depression at the time of the suicide attempts.

       We find that the evidence presented to the trial court was insufficient to establish

that B.N.D.'s circumstances at the time of the filing of the petition would significantly

impair her physical health or emotional development. Andrea had been separated from

Jeff for a minimum of approximately eight months at the time of the filing of the

petition, and she was in the process of divorcing Jeff at that time. Her suicide attempts

had occurred approximately five years prior to the filing of the petition. Because we

find that the Griffins did not establish by a preponderance of the evidence that B.N.D.'s

circumstances at the time of the filing of the petition would significantly impair her

physical health or emotional development, the Griffins did not establish that they had

standing to seek conservatorship of B.N.D.       Therefore, the trial court should have

dismissed this proceeding for lack of standing. We sustain issue one.

       Because we have sustained Andrea's first issue, we do not reach issues two

through five.




In re Hogard                                                                         Page 8
Conclusion

       We conditionally grant Andrea Hogard’s mandamus petition. A writ will issue

only if Respondent fails to withdraw her order granting temporary conservatorship to

the Griffins and fails to enter an order dismissing this proceeding within fourteen days

after the date of this opinion.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Conditionally Granted
Opinion delivered and filed October 10, 2013
[OT06]




In re Hogard                                                                      Page 9
