                                NO. 07-10-0223-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL D

                               FEBRUARY 25, 2011

                        ______________________________


                       IN THE INTEREST OF N.W., A CHILD

                       _______________________________

              FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2009-548,188; HONORABLE JIM BOB DARNELL, JUDGE

                       _______________________________

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.


                            MEMORANDUM OPINION


      Appellant, Samuel Neither, proceeding pro se and in forma pauperis, brings this

appeal challenging two separate orders of the trial court: (1) the Order Rescinding

Temporary Possession Order, and (2) the Order of Dismissal, which dismissed, with

prejudice, the Suit Affecting Parent-Child Relationship (SAPCR) filed by Appellant,

wherein he sought sole managing conservatorship of N.W., a minor child. We reform

and affirm.
                                         Background1


       N.W., the child the subject of this proceeding, is a female child born in December

of 2001. Appellee, Krystie Wilson, N.W.'s biological mother and Appellant's former

girlfriend, lives in Dallas County, Texas. Appellee, David Washington, N.W.'s biological

father, lives in Lubbock County, Texas.2             In 2005, Appellant and Wilson were

romantically involved for a brief period of time. They were never married and their

relationship ended badly. In competing stories, Appellant claims that Wilson left N.W. in

his care and exhibited conduct unbecoming of a mother. Wilson, on the other hand,

asserts that Appellant stalked her and eventually took N.W. from an elementary school

in Richardson, Texas, without her consent.


       In 2008, Appellant filed a SAPCR in Dallas County.                That proceeding was

dismissed for want of prosecution on June 16, 2009. On July 2, 2009, Appellant filed a

second SAPCR in Lubbock County, contending that he was N.W.'s stepfather and that

she resided with him in Dallas, Texas. At that time, Appellant alleged he was unaware

of Wilson's whereabouts and thereby sought service of process by publication. Service

of citation was completed on October 1, 2009, by publication in The Daily Commercial

Record, a "daily newspaper" published in Dallas County, Texas. Although Washington


1
 Due to the procedural posture of this case, the limited facts presented here were gleaned from the
pleadings of the parties and the Clerk's Record.
2
 Although not named as a Respondent in Appellant's original petition, Washington was served by
publication and named as a Respondent in the Temporary Order in Suit Affecting the Parent-Child
Relationship entered by the trial court on April 12, 2010.
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was not named as a Respondent in Appellant's petition, service of citation was sought

and completed on September 11, 2009, by publication in The Idalou Beacon, a

"newspaper of general circulation" published in Lubbock County, Texas. After neither

Wilson nor Washington appeared, on April 12, 2010, Appellant sought and obtained a

temporary order granting him custody of N.W.          On April 13, 2010, based on that

temporary order, school officials in Richardson, Texas, permitted Appellant to remove

N.W. from the elementary school where she had been enrolled by Wilson.               When

Wilson disputed the school's authority to release N.W. to an unauthorized person and

reported the incident as a kidnapping, police and school officials contacted the trial court

to determine the authenticity of the temporary order.        Realizing that Appellant had

obtained temporary custody of N.W. by making false allegations in his petition regarding

the whereabouts of both Wilson and Washington, as well as Appellant's relationship to

the child and the child's residence, on April 15, 2010, the trial court sua sponte

rescinded its temporary order. Thereafter, on April 20, 2010, without holding a hearing,

the trial court ended the litigation by entering an Order of Dismissal, with prejudice.

Appellant now challenges the rescission of the temporary order and the dismissal of his

suit.


                                         Analysis


        When Appellant filed suit in Lubbock County, he also filed an Affidavit of Inability

to Pay Costs. This document implicates chapter 13 of the Texas Civil Practice and


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Remedies Code which permits dismissal of a case if the action is frivolous or malicious.

Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2) (West 2002).3 An action may be

frivolous or malicious if the action's realistic chance of ultimate success is slight, the

claim has no arguable basis in law or fact, or the party cannot prove a set of facts in

support of the claim. Id. at § 13.001(b).


       A dismissal under § 13.001(a)(2) is reviewed for abuse of discretion. Jones v.

CGU Ins. Co., 78 S.W.3d 626, 628 (Tex.App.--Austin 2002, no pet.). Additionally, in

matters involving custody, control, or possession of minor children, we give wide latitude

to a trial court's decision. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

In such circumstances, a trial court abuses its discretion when it acts arbitrarily or

unreasonably, without reference to any guiding rules or principles. Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990).


       Here, the trial court's dismissal order recites that Appellant made allegations in

his petition that were false. According to that order, the trial court found Appellant knew

or should have known both Wilson's and Washington's current addresses.

Furthermore, it appears Appellant misrepresented his relationship to the child and the

child's residence.     Accordingly, we note Appellant faced a substantial obstacle in

establishing his standing to bring a suit for custody of N.W. See Tex. Fam. Code Ann. §

102.003(a) (West 2008).

3
 For convenience, future references to sections of the Texas Civil Practices and Remedies Code will
subsequently be cited as A§ ___.@

                                                4
      Furthermore, this case involves a nonparent, Appellant, seeking custody over a

parent, Wilson. Appellant acknowledges in his brief the presumption that a parent be

appointed sole managing conservator unless doing so would significantly impair the

child's physical or emotional development. See Tex. Fam. Code Ann. § 153.131 (West

2008). The presumption that the best interest of a child is served by appointing a

natural parent over a nonparent as managing conservator is deeply embedded in Texas

law. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). "Close calls" in which a

nonparent and parent are seeking conservatorship "go to the parent." In re B.B.M., 291

S.W.3d 463, 469 (Tex.App.--Dallas 2009, pet. denied). Despite Appellant's allegations

of Wilson's unfit conduct as a mother, the record reflects that the Texas Department of

Protective and Regulatory Services investigated Wilson and found that the

Department's services were unnecessary.


      Given Appellant's false allegations and misrepresentations to the trial court,

together with his slight chance of success as a nonparent in a custody dispute against a

parent, we conclude the trial court did not abuse its discretion in finding Appellant's

claim to be frivolous or malicious. Accordingly, the trial court did not err in dismissing

Appellant's action pursuant to § 13.001(a)(2). Appellant's contentions are overruled.




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                                         Conclusion


      We, therefore, affirm the trial court's order rescinding its previous temporary

order. Because a dismissal pursuant to § 13.001(a) is without prejudice, Mullins v.

Estelle High Security Unit, 111 S.W.3d 268, 273-74 (Tex.App.--Texarkana 2003, no

pet.), we reform the order of dismissal so as to delete the reference to dismissal "with

prejudice" and affirm that order as reformed.




                                                Patrick A. Pirtle
                                                    Justice




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