      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00493-CV



                              Terry James Cunningham, Appellant

                                                    v.

                            Ariane Ansorena-Cunningham, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
     NO. D-1-FM-07-004785, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION

                Appellant Terry James Cunningham brought a suit affecting the parent-child

relationship (SAPCR) seeking to be named joint managing conservator of T.D.C. and A.A.C. The

trial court dismissed the SAPCR on the basis that Cunningham, a non-parent, lacked standing. We

will affirm the trial court’s order of dismissal.


                                          BACKGROUND

                Cunningham       and    Ariane      Ansorena-Cunningham   were   divorced   on

December 15, 1999. At that time, no children had been born of the marriage and Ansorena-

Cunningham was not pregnant. On December 29, 1999, Ansorena-Cunningham was artificially

inseminated with sperm from an anonymous donor and became pregnant with twins. The children,

T.D.C. and A.A.C., were born on August 28, 2000. According to Cunningham, he and his ex-wife
continued to live together after their divorce and he assumed the role of the children’s father until

the couple separated “on or about December 15, 2006.”

               Nine months after the separation, on September 18, 2007, Cunningham filed his

Original Petition for Divorce alleging that he and Ansorena-Cunningham had been in a common-law

marriage since December 1999; in the petition, he sought to be named joint managing conservator

of T.D.C. and A.A.C. Ansorena-Cunningham filed a motion to dismiss Cunningham’s SAPCR for

lack of standing. By his second amended divorce petition, Cunningham asserted that he had standing

to bring the SAPCR because he is “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.” See Tex. Fam. Code Ann. § 102.003(a)(9) (West 2008).

Alternatively, he pleaded that he had standing under the common law doctrine of in loco parentis.

After a hearing, the trial court entered an order of dismissal and severed the SAPCR from the divorce

action, making it a final, appealable order.

               On appeal, Cunningham argues by two issues that the trial court erred in determining

that he lacked standing under section 102.003 of the family code and misapplied the doctrine of

in loco parentis.


                                   STANDARD OF REVIEW

               Standing is a component of subject-matter jurisdiction and is a constitutional

prerequisite to maintaining a lawsuit under Texas law. Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 443-44 (Tex. 1993). Whether a court has subject-matter jurisdiction is a question

of law subject to de novo review. Texas Natural Res. Conservation Comm’n v. IT-Davy,

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74 S.W.3d 849, 855 (Tex. 2002). In an original suit affecting the parent-child relationship in which

the petitioner seeks managing conservatorship, the question of standing is a threshold issue.

In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.). A petitioner seeking

managing conservatorship has the burden to prove standing. See In re Smith, 262 S.W.3d 463, 465

(Tex. App.—Beaumont 2008, orig. proceeding).             The Texas Legislature has provided a

comprehensive statutory framework for conferring standing in the context of suits involving the

parent-child relationship. See Tex. Fam. Code Ann. §§ 102.003, .0035, .004, .0045, .006 (West

2008). In reviewing a trial court’s order on a motion to dismiss for lack of standing, we consider the

issue as we would in a plea to the jurisdiction, construing the pleadings in favor of the plaintiff.

See Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001).


                                          DISCUSSION

               In his first issue, Cunningham argues that he had standing to bring the SAPCR under

section 102.003 of the family code, which provides in relevant part that a person may bring suit if

he 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);

In re Derzapf, 219 S.W.3d 327, 332 n.9 (Tex. 2007). The purpose of section 102.003(a)(9) is to

create standing for those who have developed and maintained a relationship with a child over time.

T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex. App.—San Antonio 1992, no writ) (examining

former family code section 11.03(a)(8)); see Coons-Andersen v. Andersen, 104 S.W.3d 630, 636

(Tex. App.—Dallas 2003, no pet.).




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               In his second amended petition, Cunningham pleaded that he and Ansorena-

Cunningham “ceased to live together as husband and wife on or about December 15, 2006.” Even

assuming that Cunningham actually exercised care, custody, or possession over the children while

he purportedly lived with Ansorena-Cunningham from December 1999 until December 15, 2006,

he did not allege—and the record contains no evidence—that the children were in his care, custody,

or possession after that time.1 Therefore, Cunningham failed to meet his burden of showing that he

had actual care, custody, or possession of the children during a six-month period ending not more

than 90 days before he filed suit. See Smith, 262 S.W.3d at 465. On the contrary, his pleadings

establish that he last resided with the children more than nine months before he filed suit in

September 2007, and he produced no evidence that he had care, custody, or possession of

the children once he no longer lived with Ansorena-Cunningham. We overrule Cunningham’s

first issue.

               By his second issue, Cunningham argues that the trial court erred in determining that

he lacked standing under the doctrine of in loco parentis. The phrase means “in the place of a

parent” and “refers to a relationship a person assumes toward a child not his or her own.”




        1
           In his brief, Cunningham states that he saw the children in August 2007, when he spent
“several days” with them celebrating their birthday, citing testimony allegedly presented at a hearing
on February 25, 2008. The transcript of this hearing does not appear in the appellate record and
cannot be considered on appeal. See Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572
(Tex. App.—Fort Worth 2003, pet. denied) (appellate court cannot look outside trial court’s record
in effort to discover relevant facts). Even if we could consider such testimony, however, it does not
establish that he had actual care, custody, or possession of the children for a period of six months,
as required by statute. See Tex. Fam. Code Ann. § 102.003(a)(9) (West 2008). Cunningham cites
no other evidence regarding his purported possession of the children during the 90 days immediately
prior to his filing suit.

                                                  4
Coons-Andersen, 104 S.W.3d at 634-35. Under common law, a person in loco parentis to a child

had the same rights, duties, and liabilities as the child’s parents. See McDonald v. Texas Employers’

Ins. Ass’n, 267 S.W. 1074, 1076 (Tex. Civ. App.—Dallas 1924, writ ref’d). These rights may

include, in appropriate circumstances, having standing as a party in a lawsuit involving custody of

the child. Trotter v. Pollan, 311 S.W.2d 723, 729 (Tex. Civ. App.—Dallas 1958, writ ref’d n.r.e.)

(op. on reh’g) (persons in loco parentis have “existing justiciable interest” in controversy involving

custody of child). As noted by the court in Coons-Andersen, however, “Texas courts have never

applied the common law doctrine of in loco parentis to grant custodial or visitation rights to a

non-parent, against the parent’s wishes, when the parent maintains actual custody of the child.”

104 S.W.3d at 635. “The defining characteristic of the relationship is actual care and control of a

child by a non-parent who assumes parental duties.” Id. The relationship generally occurs only

when a parent is unwilling or unable to care for the child.            Id.; see also In re K.K.C.,

No. 09-09-00131-CV, 2009 Tex. App. LEXIS 5431, at *15 (Tex. App.—Beaumont July 16, 2009,

orig. proceeding).

               Cunningham, having failed to prove that he had actual care and control of the

children for purposes of establishing standing under section 102.003 of the family code, fails for

the same reason to show that the in loco parentis doctrine applies here. See Coons-Andersen,

104 S.W.3d at 636 (noting that family code section 102.003(a)(9) “is in complete harmony” with and

“actually embraces” doctrine of in loco parentis). Because Cunningham no longer resided with the

children and there is no evidence that the children were in his care at the time he filed suit, he did

not stand in loco parentis to T.D.C. and A.A.C. for purposes of bringing the SAPCR.



                                                  5
See id. at 635-36 (“The common law relationship is temporary and ends when the child is no longer

under the care of the person in loco parentis. . . . [W]e reject the notion that [appellee’s] possible

status as a person in loco parentis continued past the time the child moved out of her house.”).2 We

overrule Cunningham’s second issue.


                                          CONCLUSION

               We hold that Cunningham did not prove standing under section 102.003(a)(9) of the

family code or the common-law doctrine of in loco parentis. We therefore affirm the trial court’s

order of dismissal.




                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: August 26, 2009




       2
          In his brief, Cunningham cites cases discussing the doctrine of in loco parentis in various
other contexts. See Rey v. State, 238 S.W.3d 840 (Tex. App.—Amarillo 2007) (grafting in loco
parentis requirement onto penal statute describing offense of child abandonment), rev’d,
280 S.W.3d 265 (Tex. Crim. App. 2009); McGee v. McGee, 936 S.W.2d 360 (Tex. App.—Waco
1996, writ denied) (extending parental immunity to parent standing in loco parentis); Nelson
v. Nelson, 334 S.W.2d 482 (Tex. Civ. App.—Waco 1959, no writ) (noting, without further comment,
trial court’s finding that father stood in loco parentis to stepson in discussion of former dependent
and neglected child statute). These cases do not stand for the proposition that someone who was at
one time in loco parentis, but is no longer, may maintain a custody lawsuit against a child’s parent.

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