Reversed and Remanded and Majority and Dissenting Opinions filed April 3,
2014.




                                               In The

                          Fourteenth Court of Appeals

                                      NO. 14-13-00006-CV

                       IN THE INTEREST OF K.D.H., A CHILD

                         On Appeal from the 257th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2012-06890

                        DISSENTING                      OPINION


      The Legislature, under section 102.004(a), 1 allows certain nonparent
relatives to file suit requesting managing conservatorship of a child upon
“satisfactory proof to the court” that the requisites for standing thereunder have
been met. 2       The majority, in essence, has construed this language to mean

      1
          All section references are to the Texas Family Code.
      2
          The relevant portion of the statute states:
      In addition to the general standing to file suit . . . 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
“satisfactory proof to the appellate court” rather than “satisfactory proof to the
[trial] court.” For this reason, I respectfully dissent.
       I disagree with the majority’s articulation of the standard and scope of
review required to review the judge’s evaluation of the proof in this context.
Applying in this non-Department case3 what I believe to be the proper standard of
review—legal sufficiency of the evidence—and scope of review—implying the
findings necessary to support the court’s judgment that Grandmother did not
present satisfactory proof to the court—I would affirm.
       The majority is correct and understated in saying that the Legislature has
drafted an “unusual” provision in section 102.004(a).               The statute employs a
familiar term, “standing,” but requires a different method of demonstrating
standing than that already engrained in our jurisprudence.                 Standing usually
requires a showing of particularized harm and typically is satisfied by pleading
certain jurisdictional facts. 4 See Bliss & Glennon Inc. v. Ashley, 01-12-01177-CV,
2014 WL 47758, at *8 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no. pet. h.).
In the Family Code section at issue, however, merely pleading jurisdictional facts
is not enough to demonstrate standing; the Legislature also requires an unusual
quantum and quality of evidence to be adduced: “satisfactory proof to the court.”
See Tex. Fam. Code § 102.004(a).

       “Satisfactory proof to the court” does not comport with any evidentiary


       the court that . . . the order requested is necessary because the child’s present
       circumstances would significantly impair the child’s physical health or emotional
       development[.]
Tex. Fam. Code § 102.004(a)(1).
       3
        The majority incorrectly states that the Department “placed” the Child with
Grandmother or “returned” the Child to Mother, as discussed infra.
       4
          As the Majority explains, “Ordinarily, standing is based on the existence of certain
facts, not the existence of certain proof.” Maj. Op. at III.A.

                                              2
standard in general use elsewhere in the Family Code or other Texas statutes.5 See,
e.g., Tex. Fam. Code § 105.005 (“Except as otherwise provided by this title, the
court’s findings shall be based on a preponderance of the evidence.”); id.
§ 161.001 (requiring “clear and convincing evidence” to terminate parent-child
relationships).     In applying section 102.004(a), are we to equate “satisfactory
proof” with a preponderance of the evidence or is “satisfactory proof” a type of
finding “otherwise provided by” the Family Code, requiring its own evidentiary
standard?

       I.      What is Satisfactory Proof to the Court?

       Although I agree with the majority that the word “satisfactory,” i.e.,
adequate,6 can be construed based on its ordinary meaning, I disagree that its
ordinary meaning is “whether there is a genuine fact issue”—in other words, more
than a scintilla. Maj. Op. at III.A.; see Kamat v. Prakash, No. 14-11-00661-CV,
2014 WL 294497, at *6 (Tex. App.—Houston [14th Dist.] Jan. 28, 2014, no. pet.
h.) (citing Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex.
2009)) (noting appellate court must overrule legal sufficiency challenge to finding
of fact when “more than a scintilla of competent evidence supports it”). In the
context of a grandparent’s right to interfere with a parent-child relationship, merely
“more than a scintilla” is neither adequate nor satisfactory.

       Sister courts have somewhat conflated the definition and the evidentiary
standard required under section 102.004(a) by defining “satisfactory proof” as a
“preponderance of the evidence.” See Mauldin v. Clements, No. 01-12-00016-CV,

      5
         The term also is used in section 102.004(b). Research has revealed only one other
Texas statute using the term, regarding certain reimbursement claims. See Tex. Estates Code
§ 1155.102.
      6
          See The American Heritage Dictionary 1092 (2d coll. ed. 1991).


                                               3
2014 WL 421292, at *14 (Tex. App.—Houston [1st Dist.] Feb. 4, 2014, no. pet. h.)
(“In a family law case, when the petitioner is statutorily required to establish
standing with ‘satisfactory proof,’ the evidentiary standard is preponderance of the
evidence.”); Medrano v. Zapata, No. 03-12-00131-CV, 2013 WL 6921500, at *7
(Tex. App.—Austin Dec. 31, 2013, no. pet. h.) (mem. op.) (“‘Satisfactory proof to
the court’ . . . denotes proof by a preponderance of the evidence.”); In re Hogard,
No. 10-13-00246-CV, 2013 WL 5603853, at *2 (Tex. App.—Waco Oct. 10, 2013,
no pet.) (mem. op.) (same); In re C.A.H., No. 11-10-00040-CV, 2011 WL 947082,
at *2 (Tex. App.—Eastland Mar. 3, 2011, no pet.) (mem. op.) (same); In re N.L.D.,
344 S.W.3d 33, 38 (Tex. App.—Texarkana 2011, no pet.) (requiring threshold
finding based on a preponderance of the evidence); Von Behren v. Von Behren, 800
S.W.2d 919, 921 (Tex. App.—San Antonio, 1990, writ denied) (applying
preponderance of the evidence standard). 7 Until the Legislature or the Texas
Supreme Court clarifies whether section 102.004(a)(1) created a new evidentiary
standard, I would follow our sister courts and require proof by a preponderance of
the evidence of Grandmother’s standing. Further, I would imply all findings
necessary to support the trial judge’s determination, as discussed below. After all,
the Legislature stated the proof should be “satisfactory . . . to the court.” Tex.
Fam. Code § 102.004(a) (emphasis added).

       II.    Standards of Review

              A. Jurisdictional Facts

       I agree with the majority that, generally, whether a plaintiff has pleaded
sufficient facts to establish standing is a threshold issue that we review de novo.


      7
         “The term ‘preponderance of the evidence’ means the greater weight of the credible
evidence admitted in [the] case.” Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC 1.3 (2010).

                                            4
Maj. Op. at III.B.; see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004); see also Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). When standing has been conferred by statute,
however, the statute itself should serve as the proper framework for the standing
analysis. In re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.]
2008, no pet.). If a petitioner fails to establish proper standing, then the trial court
must dismiss the suit. Compton v. Pfannenstiel, No. 01-13-00062-CV, 2014 WL
576175, at *2 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014, no. pet. h.).

      Under section 102.004(a)(1), Grandmother was required to plead the
following jurisdictional facts: this is an original suit requesting managing
conservatorship, she is a grandparent, and she has proof (pleadings not being
proof) of the requisite facts. The majority correctly notes that these jurisdictional
facts as pleaded should be construed liberally in favor of the pleader.             See
Miranda, 133 S.W.3d at 226; see also N.L.D., 344 S.W.33 at 37-38 (applying
Miranda standard to pleaded facts of consanguinity under 102.004(a) of three
different petitioners and finding two did not satisfy the statute and, therefore, did
not have standing).     I disagree, however, that it would be “unreasonable” to
construe 102.004(a)(1) so that the trial court is the fact-finder who makes
credibility determinations thereunder, as the majority holds. Maj. Op. at III.A. I
would hold the trial court’s finding that Grandmother’s proof was not
“satisfactory” should be reviewed as we review other trial-level fact-findings.

             B. Satisfactory Proof to the Court

      The Legislature places an additional burden on the party seeking to
demonstrate standing under section 102.004(a) beyond sufficient pleadings: to




                                           5
present “satisfactory proof to the court” of the requisites thereunder. 8 I believe
that, by doing so, the Legislature intended for the trial court to serve as a
gatekeeper, limiting the access of nonparent relatives to file original suits to
determine conservatorship.         See Medrano, 2013 WL 6921500, at *6 (“[T]he
relationship of grandparent to child is not alone considered sufficient to confer
standing to bring a suit for conservatorship—to the contrary, chapter 102 embodies
a strong public policy that grandparents should ‘not [be] entitled to disrupt the
child’s family life and initiate suits for managing conservatorship except in limited
circumstances.’” (citing Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex.
App.—Houston [1st Dist.] 2007, no pet.))); see also infra III. (discussion regarding
grandparental access).

         I would defer to the trial court’s assessment of whether the proof presented
to it by Grandmother was satisfactory, considering the evidence in a light favorable
to the trial court’s ruling and implying findings to support the judgment. See
Compton, 2014 WL 576175, at *2; see also N.L.D., 344 S.W.3d at 38 (citing
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).                           The majority
acknowledges that the Legislature intended the trial court to perform a gatekeeper
function (Maj. Op. at III.A.), but then opens wide the gate and throws away the
key. 9       Despite the unambiguous language used in the statute, the majority is
uncomfortable with a construct that “casts the trial court as the factfinder”
regarding satisfactory proof to the court because it makes appellate review


         8
         Therefore, I disagree with the majority that, in this circumstance, merely pleading a
proper basis for standing is sufficient.
         9
           The traditional standard of appellate review for decisions of the trial court as an
evidentiary gatekeeper is an abuse of discretion. See, e.g., Enbridge Pipelines (E. Tex.) L.P. v.
Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (applying abuse of discretion standard
to trial court’s gatekeeping function to exclude irrelevant and unreliable expert evidence); see
also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

                                               6
awkward (see Maj. Op. at III.A.). 10 Perhaps so, but we can no more rewrite the
statute to make our job easier than we can to alter the outcome of an opinion.11
       Here, the trial court held a hearing where evidence was presented. Because
the trial court did not make findings of fact and conclusions of law, we must imply
that it found Grandmother’s evidence of standing under section 102.004(a)(1) to be
unsatisfactory. See Mauldin, 2014 WL 421292, at *14; see also Compton, 2014
WL 576175, at *2. I would review the evidence in a light favorable to the trial
court’s findings, drawing reasonable inferences in its favor and presuming the
court resolved any evidentiary conflicts in a manner supporting its implied
findings. Medrano, 2013 WL 6921500, at *8 (quoting City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005)) (“[T]rial-level fact-finders ‘are the sole judges


       10
          In fact, this court previously has deferred to the trial court as fact-finder in the standing
analysis under section 102.004(a). See In re Vogel, 261 S.W.3d 917, 922 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (“Given these facts, we conclude that the trial court reasonably could
have found that [the child’s] present circumstances . . . would significantly impair his physical
health or emotional development.”).
       11
           The following courts have applied a scope of review deferential to the trial court’s fact-
finding to analyze standing under section 102.004(a): the First, Third, Fourth, Sixth, and
Seventh Courts of Appeals. See, e.g., Compton, 2014 WL 576175, at *2 (“In our review, we
consider the evidence in a light favorable to the trial court’s ruling.”); Medrano, 2013 WL
6921500, at *8 (“We are likewise required to view the evidence in the light favorable to the
district court’s findings, drawing reasonable inferences in their favor, and presuming that the
court resolved any evidentiary conflicts in a manner supporting its findings.”); N.L.D., 412
S.W.3d at 814 (applying abuse of discretion standard); In re S.M.D., 329 S.W.3d 8, 13 (Tex.
App.—San Antonio 2010, pet. dism’d) (“We review the entire record to determine if the trial
court’s implied findings are supported by any evidence.”); In re Burrows, No. 07-98-0178-CV,
1999 WL 270176, at *2 (Tex. App.—Amarillo May 4, 1999, no pet.) (“[I]n a case such as this in
which the trial court has made findings of fact and those findings are challenged on appeal, they
are reviewed under the same standards as those used to review jury findings”). The Fifth Court
of Appeals has also deferred to the trial court’s fact-finding in a similar context. See In re
M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.) (“When, as here, the trial court
makes no separate findings of fact or conclusions of law, we must draw every reasonable
inference supported by the record in favor of the trial court’s judgment.” (finding grandparental
standing under Texas Family Code section 102.003(9) (conferring standing on “a person . . . 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”))).

                                                  7
of the credibility of the witnesses and the weight to give their testimony. They
may choose to believe one witness and disbelieve another. Reviewing courts
cannot impose their own opinions to the contrary.’”). I would apply this scope of
review to determine whether the proof presented was such that a reasonable fact-
finder could conclude that Grandmother did not establish that the “order requested
was necessary because the child’s present circumstances would significantly
impair the child’s physical health or emotional development.” See Tex. Fam. Code
§ 102.004(a)(1); see also Medrano, 2013 WL 6921500, at *9.

      III.   Grandparental Access

      In 2000, the United States Supreme Court’s decision in Troxel v. Granville,
530 U.S. 57 (2000), precipitated a major shift in the way courts were to apply
statutes allowing for grandparental access to a grandchild. Sampson & Tindall’s
Texas Family Code Annotated 615 (Aug. 2013 ed.) (Sampson & Tindall). Troxel
reaffirmed a long line of cases holding that parents have a fundamental
constitutional right to have and raise children without interference from the State
except in extraordinary circumstances. Id. In 2004, the Attorney General of Texas
issued an opinion concluding that Texas statutes in effect at the time granting
grandparental access to grandchildren could be applied constitutionally, but the
principles expressed in Troxel must be observed. Id. (citing Tex. Att’y Gen. Op.
No. GA-0260 (2004)). The attorney general’s opinion summarized “[t]he message
of Troxel” as follows: “[S]tate statutes that infringe upon a parent’s right to
control the care and custody of his or her children are subject to strict scrutiny.”
Tex. Att’y Gen. Op. No. GA-0260.

      Subsequently, the Legislature raised the bar for grandparental access to
grandchildren, requiring evidence that the denial of access “would significantly
impair the child’s physical health or emotional well-being.” Fam. Code § 153.432;

                                         8
see also Sampson & Tindall 615.              The trial court must make a preliminary
determination that the facts stated would, if true, demonstrate the truth of that
allegation. Fam. Code § 153.432; see also Sampson & Tindall 615. Even so, the
trial court retains discretion to order or refuse to order access and possession. Fam.
Code § 153.433; see also Sampson & Tindall 615.

       The Legislature similarly amended section 102.004(a)(1) to mirror the
language used in section 153.432, requiring the grandparent to present
“satisfactory proof to the court” that “the child’s present circumstances would
significantly impair the child’s physical health or emotional development.”12
Accordingly, the statute reflects a policy by the Legislature to follow the dictates
of Troxel: that “there will normally be no reason for the State to inject itself into
the private realm of the family to further question the ability of that parent to make
the best decisions concerning the rearing of that parent’s children.” 530 U.S. at
68-69.

       In that connection, the Legislature provided a mechanism for the trial court
to be a gatekeeper to safeguard the fundamental constitutional right of parents to
make decisions regarding the rearing of their own children. To protect this vital
interest, the gate through which grandparents obtain standing to request managing
conservatorship must be narrow. In light of these principles, the basis for standing
at issue here is intended to restrict nonparent relatives from bringing a custody
lawsuit except in “certain extreme circumstances”: it is not enough to show the
child would be “better off” with the relative seeking custody. See Medrano, 2013
WL 6921500, at *6.
       12
          Prior to that amendment, the standard for grandparental standing was lower. Instead of
being required to show “significant impairment” of the child’s “physical health or emotional
development,” the grandparent had to show only “a serious question” concerning the child’s
“physical health or welfare.” Conference Committee Report, Tex. H.B. 260, at 2, 79th Leg., R.S.
(3d printing May 28, 2005).

                                               9
       Long before Troxel was decided, the Legislature had extensively amended
the Family Code to permit grandparents and others to bring an original suit
affecting the parent-child relationship under only limited, “specific factual
circumstances.”      Hearing on Tex. S.B. 455 Before the Senate Jurisprudence
Comm., 69th Leg., R.S. (Mar. 5, 1985) (statement of Professor John S. Sampson
on behalf of State Bar of Texas Family Law Section). That amendment created “a
pretty severe test for grandparents . . . to seek custody” and was “balanced out” to
“prevent . . . grandparents from bringing a suit for custody every time they disagree
with the way their daughter or daughter-in-law is raising a child.”                    Id. The
amendment was intended as a compromise “to strike a balance between situations
where people legitimately ought to be brought in and heard before the court while
at the same time not opening the courthouse doors so that family autonomy or
family privacy can be invaded just at the will or whim of others.”                            Id.
Accordingly, the trial court was given the discretion to decide whether
grandparents have standing under the “specific factual circumstances” provided for
in the amendment. 13

       Grandmother’s claims are created by statute—namely, the Family Code—
and Grandmother’s standing to assert them is likewise governed by that Code’s
“comprehensive statutory framework for standing in the context of suits involving
the parent-child relationship.” See Jasek v. Tex. Dept. of Family & Protective
Servs., 348 S.W.3d 523, 528 (Tex. App.—Austin 2011, no pet.) (quoting In re
H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, pet. denied)).
       13
           The 1985 amendment for the first time allowed grandparents or “any other person
deemed by the court to have had substantial past contact with the child” to bring an original suit
affecting the parent-child relationship upon “satisfactory proof to the court” that, as relevant
here, “the child’s environment with the parent or parents, the managing conservator, or the
custodian may endanger the child’s physical health or significantly impair the child’s emotional
development.” See Senate Committee Report, Tex. S.B. 455, at 1, 69th Leg., R.S. (Mar. 13,
1985).

                                               10
Accordingly, Grandmother had the burden of establishing her standing within the
prescribed parameters of that statutory language. See id.; see also Hunt v. Bass,
664 S.W.2d 323, 324 (Tex. 1984). Grandmother has relied on one of the “limited
circumstances” in which grandparents may have standing under chapter 102, which
are intended to restrict grandparental standing to “certain extreme circumstances.”
See Medrano, 2013 WL 6921500, at *6; see also Von Behren v. Von Behren, 800
S.W.2d 919, 921 (Tex. App.—San Antonio 1990, writ denied) (observing, with
reference to an earlier version of this standing limitation, that it is “‘designed to
strike a balance between those grandparents . . . who undertake a rescue mission
and those who are just out to do a little officious intermeddling to correct the
‘unsatisfactory’ childrearing methods of the younger generation.’” (quoting John J.
Sampson, Texas Family Code & Commentary, 17 Tex. Tech. L. Rev. 1045, 1073
(1986))).

      IV.    The Rest of the Story: The Proof before the Trial Court

      The record contains Grandmother’s brief, Grandmother’s selections from the
clerk’s record, and the reporter’s record from the hearing on the motion to dismiss
where Grandmother was “called” as a witness. Both parents also appeared pro se
at the hearing and spoke with the judge. See Medrano, 2013 WL 6921500, at *5
n.9 (considering standing arguments made to trial court at hearing). It is unclear
whether the parents were sworn as witnesses at the hearing. The trial court stated,
“Everyone who’s going to testify in this matter, please raise your right hand.” This
statement is followed in the record by the notation “(Witnesses sworn),” which
indicates one or both parents were sworn in as witnesses along with appellant. The
majority considers the statements by the pro se parties to be non-evidentiary,
ignoring the realities of a busy trial court where not every witness sits in the



                                         11
witness chair.14 In considering the evidence in a light favorable to the trial court’s
ruling and implying findings to support the judgment, I would presume that the
trial court took these statements into account in its determination of standing.

       In response to the testimony adduced at the hearing and recited in the
majority opinion, Maj. Op. at I. and III.B., the trial court expressed concern that
Grandmother had presented no evidence that the Child’s present circumstances
significantly impaired her health or emotional development. 15 See Medrano, 2013
WL 6921500, at *7 (“‘Present circumstances’ . . . refer[s] to the state of affairs that
existed as of the date [the relative nonparent] file[s] suit.”).16 The trial court noted
that Grandmother’s original petition did not even allege standing under
102.004(a)(1).17 It is undisputed that, when Grandmother filed suit, the Child was

       14
           The trial judge has broad discretion to manage trial proceedings. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). This authority is set forth, in part, in the Texas
Rules of Evidence: “The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence . . . .” Tex. R. Evid. 611(a). A trial court must
have leeway to manage its courtroom in the most expedient manner. See Francis, 46 S.W.3d at
241. Moreover, in a bench trial, it is the trial judge who observes the appearance and demeanor
of the witnesses, evaluates the personality of the contending claimants, and assesses the needs of
the child in a suit affecting the parent-child relationship. In re J.G., 412 S.W.3d 83, 94 (Tex.
App.—Fort Worth 2013, no pet.) (Dauphinot, J., dissenting).
       At the hearing, the trial court asked the Father to speak after Grandmother completed her
testimony. It is unclear whether the court intended the Father’s comments at that point to be
testimony or argument. The Father had no pending motion.
       THE COURT: Anything else you want to say, sir?
       [Father]: Yes, ma’am. A lot of what she said is inaccurate. I don’t want to go
       back and pick all the details . . . . Like I said, the baby’s well cared for. She’s not
       in any kind of danger. She’s well cared for and me and her mother are getting
       along swimmingly. There’s a lot of love in the house and everything is fine at
       this point in time.
       15
          The Father stated, “The current conditions that my child’s living in do not impair her
development. She’s not in any kind of danger. She’s well taken care of. She’s fed. She’s cared
for. She has all the affection and love she needs or wants.”
       16
            Grandmother filed suit February 2, 2012.
       17
            Grandmother initially alleged standing based on voluntary relinquishment by the
                                                12
living with her parents away from Grandmother’s residence. The trial court also
noted that the Department had not filed a case against the parents. Grandmother’s
counsel told the trial court the Department said that the Mother had “done her
services” under the agreed plan.

       When, as here, there is no explicit statement by the trial judge that she was
taking notice of the court’s file, we presume that the trial court took judicial notice
of “what has previously taken place in the case tried before it, and the parties are
not required to prove facts that the trial court judicially knows.” See In re A.W.B.,
No. 14-11-00926-CV, 2012 WL 1048640, at *3 (Tex. App.—Houston [14th Dist.]
Mar. 27, 2012, no pet.) (mem. op.); see also In re J.J.C, 302 S.W.3d 436, 446
(Tex. App.—Houston [14th Dist.] 2009, pet. denied). The record is unclear as to
the extent of the Department’s involvement with K.D.H. The Department was
originally sued by Grandmother as a defendant, but we have none of its pleadings
in our record. However, we do know from the “Report to the Court” filed by the
Department and in the clerk’s record that the Department, as of February 28, 2012,
recommended “continued” placement of the child with the Mother.

       The Report further stated:

            • The Department has not been named temporary managing conservator
              in this suit. 18

            • Mother was merely “asked” to participate in various programs and
              agreed to do so; however, there is no order in the record.

parents and her “actual care, custody and possession” of the Child since October 5, 2011, which
is less than the required six months. Grandmother added allegations under section 102.004(a)(1)
in a supplemental and amended petition filed June 13, 2012.
       18
           The report does not reflect that anyone other than the parents ever was named
managing conservator of the Child; therefore, it is not accurate to say the Child was “returned” to
the Mother or to imply that the Child was “placed” with anyone else, although the Department
approved the Child’s living arrangement with the Mother at Grandmother’s residence and
referred to Grandmother and her husband as “voluntary caregivers.”

                                               13
            • Mother was observed in family visitation by the Department on at
              least five occasions.
       Moreover, according to the docket sheet in the record, the parties appeared
before the trial court on five other occasions before the hearing on the motion to
dismiss. 19 The trial court was entitled to take into account that case history in
assessing the credibility of the witnesses and making its determination as to
standing. See In re A.W.B., 2012 WL 1048640, at *3.

       V.     Response to Majority’s Sua Sponte Arguments

       The majority suggests that because Grandmother paid a jury fee, she had a
constitutional right to a jury trial (and, by extension, a constitutional right to have a
jury decide whether she presented satisfactory proof).               Despite the fact that
Grandmother did not make this argument, the majority also sidesteps whether
Grandmother had standing to seek a jury trial in the first place. An appellate court
may sua sponte determine it has no jurisdiction, because without jurisdiction, it
cannot act; however, it may not sua sponte create jurisdiction for a party. See
Texaco, Inc. v. Shouse, 877 S.W.2d 8, 11 (Tex. App.—El Paso 1994, no writ)
(acknowledging that court of appeals is required sua sponte to determine whether it
has jurisdiction but may not create jurisdiction by consent or stipulation of the
parties or waiver). A party without standing does not have a constitutional right to
maintain a lawsuit, whether tried by a jury or the court. Also, since section
102.004(a) clearly places the fact-finding duties with the trial court, the majority is
implying the statute is unconstitutional. See Serv. Corp. Int’l v. Guerra, 348
S.W.3d 221, 234 n.4 (Tex. 2011) (“[W]e only decide constitutional questions when

       19
          Entries on docket sheets may not be used to contradict trial court orders and are not
generally considered to be trial court orders or findings. Haut v. Green Cafe Mgmt., Inc., 376
S.W.3d 171, 178-79 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Regardless, docket entries
may be used by appellate courts to determine what transpired in the trial court. Id.

                                              14
we cannot resolve issues on other grounds.”).

      The majority also argues on Grandmother’s behalf that the merits of
Grandmother’s case are implicated in the Mother’s standing challenge (to support
her request for appointment as managing conservator, Grandmother pleads, among
other complaints, that the Mother’s access to the Child would endanger the Child’s
physical health or emotional welfare). The majority concludes that the trial court
cannot rule on the issue of satisfactory proof to the court, therefore, unless the
evidence is conclusive, citing Miranda. See 133 S.W.3d at 228. If there is a fact
question, the majority says, the issue must go to a jury. See Maj. Op. at III.A.
However, as set forth above, when standing has been conferred by statute, it is the
statute that creates the proper framework for a standing analysis. In re Smith, 260
S.W.3d at 572. Standing under section 102.004 arises from the “comprehensive
statutory framework for standing in the context of suits involving the parent-child
relationship.” Medrano, 2013 WL 6921500, at *5. Moreover, standing with
regard to suits affecting the parent child relationship that implicate the
“[fundamental] interest of parents in the care, custody, and control of their
children” must be analyzed in accordance with Troxel. See 530 U.S. at 65-66; see
also In re Russell, 321 S.W.3d 846, 859 (Tex. App.—Fort Worth 2010, no pet.)
(“We construe the standing statutes in a manner consistent with the constitutional
principles stated in Troxel.”).

      I disagree with the majority that the trial judge is bound by Miranda to
abstain when the statute explicitly requires the trial court to act.

      VI.    Conclusion

      In implying the findings necessary to support the trial court’s determination,
I would conclude that a reasonable fact-finder could have found that Grandmother
did not present by a preponderance of the evidence “proof satisfactory to the court”
                                           15
that the Child’s present circumstances as of February 2, 2012 would significantly
impair the Child’s physical health or emotional development.20 See Tex. Fam.
Code § 102.004(a)(1).         As the trial court noted at the hearing, Grandmother
presented evidence only of the child’s past circumstances, and the trial court was
entitled to consider the Department’s recommendation that the Mother maintain
custody, and indeed, as the trial court noted, the Department’s decision not to
pursue a case against the parents.




                                    /s/     Martha Hill Jamison
                                            Justice


Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Frost, C.J.,
majority).




       20
          Even applying the standard articulated by the majority, I would find Grandmother
failed to create an issue of material fact of present circumstances significantly impairing the
Child’s health. Present means as of the date of filing. Medrano, 2013 WL 6921500, at *7.
Moreover, Grandmother was required to present evidence of “specific, identifiable behavior or
conduct of the parent[s],” as shown by “specific acts or omissions,” and evidence that such acts
or omissions “will probably cause that harm.” See S.M.D., 329 S.W.3d at 16. Grandmother
presented no evidence of acts or omissions by Mother or of present circumstances that would
harm the Child. In fact, Grandmother testified that the Child had not been hurt during the
Mother and Father’s interactions with the Child in the Grandmother’s home.

                                              16
