                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                  §
                                                                  No. 08-15-00001-CV
                                                  §
                                                                     Appeal from the
  IN THE INTEREST OF J.H. III,                    §
                                                                    65th District Court
  A CHILD.                                        §
                                                                Of El Paso County, Texas
                                                  §
                                                                  (TC# 2013DCM2786)
                                                  §


                                          OPINION

       Jorge Holguin appeals an order granting Mayela Quinones, the child’s maternal

grandmother, possessory conservatorship of his son, J.H. First, Appellant claims that the trial

court erred in appointing Appellee possessory conservator of J.H. because Appellee did not present

evidence that denying her possession or access to J.H. would significantly impair J.H.’s physical

health or emotional wellbeing, which he maintains is required, as a grandparent, under Section

153.433(a)(2) of the Texas Family Code. Second, he asserts the trial court erred in appointing

Appellee possessory conservator absent evidence that J.H.’s mother was legally unavailable.

Third, he argues the trial court’s award of possessory conservatorship to Appellee was an abuse of

discretion because the judgment did not conform to the pleadings. Finally, he alleges that the trial

court erred in granting Appellee possessory conservatorship because, as a grandparent, Appellee
was required to bring a separate suit for possessory conservatorship. For the following reasons,

we affirm.

                                        BACKGROUND

       This case involves a grandparent who was appointed a possessory conservator of a

grandchild over the objections of a parent. The child, J.H., lived with his parents Jorge and Maria

Holguin for the first three years of his life until his parents were sent to federal prison on drug-

related charges. J.H. then lived with his maternal grandmother, Mayela Quinones, from March

2011 to March 2013. In March 2013, Appellant was released from prison and took possession of

J.H. Appellant’s wife, Maria Holguin was released six months before Appellant, but had been

deported. After picking up J.H., Appellant refused to give Appellee access to the child. Appellee

then filed suit seeking to be named sole managing conservator of J.H. Following a brief trial, the

trial court appointed Appellant sole manager conservator and Appellee possessory conservator.

The trial court’s order also restricted J.H.’s residence to El Paso County. This appeal followed.

                                          DISCUSSION

                                       Standard of Review

       We begin by acknowledging that trial courts have wide discretion when deciding matters

of custody, control, possession, support, or visitation. In Interest of K.S., 492 S.W.3d 419, 426

(Tex.App.--Houston [14th Dist.] 2016, pet. denied). We review the trial court’s orders under the

abuse of discretion standard. In re M.A.S., 233 S.W.3d 915, 921 (Tex.App.--Dallas 2007, pet.

denied). As we will discuss below, however, Appellee’s standing is relevant to the issues on

appeal. Whether a party has standing to seek relief is a question of law, which we review de novo.

In re S.M.D., 329 S.W.3d 8, 13 (Tex.App.--San Antonio 2010, pet. denied); In re Russell, 321


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S.W.3d 846, 856 (Tex.App.--Fort Worth 2010, orig. proceeding); In Interest of K.S., 492 S.W.3d

at 424. When the trial court does not make separate findings of fact and conclusions of law

regarding its determination of standing, as in this case, we imply such findings as necessary to

support the conclusion that the parties had standing. In re S.M.D., 329 S.W.3d at 13; In Interest

of K.S., 492 S.W.3d at 424. Further, the implied finding of standing must be supported by

evidence in the record. In re S.M.D., 329 S.W.3d at 13.

                                           Applicable Law

        A grandparent is authorized by Section 153.432 of the Texas Family Code to file a lawsuit

requesting possession of or access to a grandchild. TEX.FAM.CODE ANN. § 153.432 (West 2014).

Section 153.432 requires the grandparent to file an affidavit alleging that denial of possession of

or access to the child would significantly impair the child’s physical health or emotional wellbeing.

Id., at § 153.432(c). The grandparent must also show that he or she is a mother or father of a

parent of the child, and that that parent of the child:

        (A) has been incarcerated in jail or prison during the three-month period preceding
            the filing of the petition;
        (B) has been found by a court to be incompetent;
        (C) is dead; or
        (D) does not have actual or court-ordered possession of or access to the child.

TEX.FAM.CODE ANN. § 153.433(a)(3)(West 2014). An order by the trial court granting the

grandparent possession or access over a parent’s objection must state with specificity that each of

these prerequisites were met. Id., at § 153.433(b).

                                               Analysis

        Here, Appellant asserts that Appellee did not overcome the presumption that a parent acts

in the best interest of the child, as required by Section 153.433(a)(2). He also contends that


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Appellee did not plead that J.H.’s mother was incarcerated, incompetent, or any of the other

requirements of Section 153.433(a)(3). Were his analysis correct, we would be required to sustain

his objections. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010)(orig. proceeding) (holding that

without evidence that a parent is unfit or that the child’s wellbeing would suffer absent access, the

grandparent cannot overcome the hefty statutory burden to be granted access over a parent’s

objections).

       But Appellant bases his argument on an incorrect assumption: that Appellee’s standing is

derived from Section 153.432. Appellee’s original petition sought sole managing conservatorship

asserting standing, not on the grandparent carveout, Section 153.432, but rather on her having

actual care, control, and possession of the child for at least six months, which confers her standing

pursuant to Section 102.003. TEX.FAM.CODE ANN. § 102.003(9)(West Supp. 2016); Shook v.

Gray, 381 S.W.3d 540, 543 (Tex. 2012). Appellant grounds his point of error in Section 153.433

which creates a cause of action for a biological or adoptive grandparent seeking reasonable

possession or access to their grandchild over the objection of the custodial parent.

TEX.FAM.CODE ANN. § 153.433(a). Originally granting trial courts broad discretion to award

visitation to grandparents, the section was amended in 2005 in response to the Supreme Court’s

ruling in Troxel, which found a Washington State statute that allowed grandparental visitation over

the objections of the parents unconstitutional. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,

147 L.Ed.2d 49 (2000); S. Comm. on Jurisprudence, Bill Analysis, Tex. H.B. 261, 79th Leg., R.S.

(2005). The Washington statute in that case, like the original Texas version, authorized visitation

rights of third parties over the objection of custodial parents provided the court found that the

visitation served the child’s best interest. Troxel, 530 U.S. at 57, 120 S.Ct. at 2055. The Texas


                                                 4
legislature amended Section 153.432 to add the higher constitutional burden for grandparental

access that Appellant now asserts Appellee was subject to. S. Comm. on Jurisprudence, Bill

Analysis, Tex. H.B. 261, 79th Leg., R.S. (2005).

       However, Appellee was not seeking visitation rights over the objection of the parents; she

was seeking custody, and based her standing on the fact that J.H. had lived with her for the two

years, from March 2011 to March 2013. Her testimony that she had actual care, control, and

possession of J.H. during this period was never challenged by Appellant at trial, nor does he contest

it in his brief. Appellant’s point of error is applicable only if Appellee did not have general

standing. TEX.FAM.CODE ANN. § 102.004 (West 2014)(granting special standing to relatives who

do not meet the general standing requirements, provided certain burdens are met). Appellee

testified to her period of possession of J.H. and filed suit within a month of Appellant taking

possession of the child. Although the trial court did not make explicit findings regarding standing,

based on Appellee’s testimony and her original petition, there is sufficient evidence to support a

finding that Appellee had general standing to file suit under Section 102.003(9). TEX.FAM.CODE

ANN. § 102.003(9)(authorizing general standing to a person other than a foster parent who 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). Further, because Appellee sought to be

appointed sole managing conservator, not merely the right to visit, Appellant’s argument that she

failed to provide the proof required by Section 153.433 is inapplicable. Thus, Appellant’s first

and second issues are overruled.

       In his third issue, Appellant argues that the trial court’s order appointing Appellee

possessory conservator was inappropriate because she did not specifically request possessory


                                                 5
conservatorship in her original pleadings. He asserts that because she did not request possessory

conservatorship, the trial court’s order did not conform to the pleadings as required by Rule 301

of the Texas Rules of Civil Procedure, and thus was an abuse of its discretion. He acknowledges

Appellee requested “general relief” in addition to being named sole managing conservator, but

contends that a prayer for general relief “cannot enlarge the recovery to embrace a cause of action

not within the pleadings.”

       Appellant is correct that Rule 301 requires the judgment of the court conform to the

pleadings. TEX.R.CIV.P. 301. But in cases affecting the parent-child relationship, technical rules

regarding pleading requirements do not carry the weight they do in a typical civil action. In re

P.M.G., 405 S.W.3d 406, 417 (Tex.App.--Texarkana 2013, no pet.); see also Leithold v. Plass,

413 S.W.2d 698, 701 (Tex. 1967)(“Technical rules of practice and pleadings are of little

importance in determining issues concerning the custody of children.”). This Court faced a

similar argument in Green v. Green, where Appellant argued that the trial court could not deny

him possessory conservatorship and visitation because Appellee’s pleadings only sought sole

managing conservatorship and did not request he be denied possession or access. Green v. Green,

850 S.W.2d 809, 811 (Tex.App.--El Paso 1993, no pet.). In affirming the ruling, we held that

“the paramount concern is the best interest of the child, and the niceties of the procedural rules of

pleading will not be used to defeat that interest.” Id., at 812. We found that the trial court

properly exercised its discretion despite a lack of absolute conformity with the pleadings because

the technical pleading rules are of little importance once the issue of child custody is properly

before court. Id.

       Similarly, here the issue of child custody was properly before the trial court based on


                                                 6
Appellee’s petition seeking sole managing conservatorship and the trial court’s finding of

jurisdiction. Appellant’s assertion that the trial court could not grant possessory conservatorship

to Appellee unless she specifically requested it in her pleadings is against the great weight of Texas

caselaw, and while the cases he cites discuss the general interpretation of Rule 301, they do not

involve child custody and consequently do not support his proposition. Thus, Appellant’s third

issue is overruled.

         Finally, Appellant argues that a grandparent must bring a suit specifically requesting

possessory conservatorship as a prerequisite to a trial court’s authority to grant possessory

conservatorship, and that because Appellee filed suit for sole managing conservatorship this

prerequisite was not met. He maintains this is required by Section 153.432(a), and Appellee did

not bring an original suit seeking to be appointed possessory conservator, or comply with the other

conditions of that section, the trial court abused its discretion.

         As discussed above, Appellee was not required to comply with Section 153.432, “Suit for

Possession or Access by Grandparent,” because she had general standing under Section 102.004

by virtue of her actual care, control, and possession of J.H. from March 2011 to March 2013.

Further, Appellant’s contention that the trial court could not grant Appellee possessory

conservatorship without her bringing a separate action specifically requesting it has no support in

the case law, and Appellant has pointed us to none. Accordingly, Appellant’s fourth issue is

overruled.

                                           CONCLUSION

         Having overruled all of Appellant’s points of error, we affirm the judgment of the trial

court.


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October 11, 2017
                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating




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