in Re Debra Shifflet and George Shifflet
462 S.W.3d 528
| Tex. App. | 2015Background
- Dawn Cantrell (mother) moved to modify a 2009 SAPCR order to be sole managing conservator of two children after temporary June 18, 2014 orders named her temporary sole managing conservator and enjoined the father from access.
- Debra and George Shifflet (step-grandparents) filed a petition in intervention seeking to be named sole managing conservators of the 13-year-old grandson (T.S.M.), alleging they had actual care, control, and possession for at least six months (March–Sept. 2014).
- Dawn moved to dismiss the intervention for lack of standing, arguing the June 18th Temporary Order had already found Dawn had possession since March 2014 and that the Shifflets were not proper parties under grandparent-standing statutes.
- At a non‑evidentiary hearing limited to counsel argument, the trial court took judicial notice of its June 18th Temporary Order, dismissed the Shifflets’ intervention for lack of standing, and then granted parts of Dawn’s ex parte relief.
- The Shifflets petitioned for writ of mandamus, arguing the court erred by deciding disputed standing facts without permitting testimony, improperly taking judicial notice of prior factual findings against non‑parties to that hearing, misapplying Family Code provisions (§102.003(a)(9), §156.002, and Chapter 153), and that they had no adequate appellate remedy.
Issues
| Issue | Plaintiff's Argument (Shifflets) | Defendant's Argument (Dawn) | Held |
|---|---|---|---|
| Standing under §102.003(a)(9) (six months’ care, control, possession) | Pleaded facts and affidavit showing T.S.M. lived with them March–Sept. 2014; pleading suffices unless rebutted | June 18th Temporary Order judicially establishes Dawn’s possession since March 2014, rebutting the Shifflets’ claim | Court: Dismissal was error. Pleading was sufficient and disputed factual issues could not be resolved on pleadings/judicial notice alone; §102.003(a)(9) does not require exclusivity |
| Use of judicial notice of prior temporary order to establish factual possession | N/A (opposed use) | Trial court may take judicial notice of its records and prior order findings to defeat standing | Court: Taking judicial notice of the truth of factual findings in an ex parte prior order against parties not present was improper and an abuse of discretion |
| Standing under §156.002 / effect of 2009 agreed order and parental presumption (Chapter 153) | 2009 order granted them phone-access rights and ability to enforce that order in their own name, making them parties affected with sufficient interest to modify under §156.002; parental presumption does not apply in modification | They are not parties to the 2009 order with substantial interests; parental presumption favors parent | Court: Shifflets have sufficient interest under §156.002(a); parental-presumption (Chapter 153) does not apply to §156 modification proceedings |
| Adequacy of appellate remedy | Temporary orders and standing rulings here are not adequately remedied by appeal | Opposes mandamus as unnecessary | Court: No adequate remedy by appeal; mandamus appropriate because intervention dismissal prevents participation and temporary orders are not appealable |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for abuse of discretion and review of legal questions)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (pleading standard and when evidence is required to rebut jurisdictional allegations)
- In re McDaniel, 408 S.W.3d 389 (Tex. App.—Houston [1st Dist.] 2011) (standing required to seek conservatorship; mandamus posture)
- In re K.D.H., 426 S.W.3d 879 (Tex. App.—Houston [14th Dist.] 2014) (statutory standing framework; pleading suffices absent rebuttal evidence)
- In re S.A.M., 321 S.W.3d 785 (Tex. App.—Houston [14th Dist.] 2010) (party affected by prior order may have standing to seek modification under §156.002)