In Re NLD
2011 WL 2139122
| Tex. App. | 2011Background
- Blacks filed a petition seeking managing conservatorship of N.L.D. alleging Haines neglected and abused the child.
- Haines was served but did not file a written answer; she did appear at the temporary hearing.
- The trial court granted a continuance for Haines and ordered drug testing; Haines did not test or appear at the rescheduled hearing.
- Temporary orders granted the Blacks temporary managing conservatorship with Haines visitation by agreement.
- With Haines's answer overdue, the Blacks obtained a final hearing and the court appointed the Blacks as joint managing conservators and the parents as possessory conservators.
- Haines appealed asserting standing defects, lack of notice of the final hearing, insufficient evidence for conservatorship, best-interests, and visitation issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Jimmy and Angela have standing to sue? | Haines argues Jimmy/Angela lack third-degree consanguinity standing. | Blacks argue standing under Section 102.004(c) extends to them as relatives. | Jimmy and Angela lack standing |
| Does Geraldine have standing under Section 102.004(a)(1)? | Geraldine should have standing as a relative within three degrees with a precondition. | Trial court failed to make required threshold finding. | Geraldine has standing; implied findings support it |
| Did Haines' appearance at the preliminary hearing entitle her to notice of the final hearing? | Haines was not entitled to notice if she did not appear; appearance not established. | Haines appeared by participating in the temporary hearing and seeking a continuance. | Haines made an appearance; due process requires notice of the final hearing |
Key Cases Cited
- Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (default judgments require meritorious defense and timely motion for new trial)
- LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (appearance and due process entitle notice to final hearing)
- Runberg v. Runberg, 159 S.W.3d 194 (Tex.App.-Amarillo 2005) (appearance depends on activity; ready or witness participation constitutes appearance)
- Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80 (U.S. Supreme Court 1988) (due process requires notice if appearance is found for trial)
- In re M.T.C., 299 S.W.3d 474 (Tex.App.-Texarkana 2009) (standing in parent-child suits governed by Family Code; threshold analysis)
- In re SSJ-J, 153 S.W.3d 132 (Tex.App.-San Antonio 2004) (standing in custody suits; de novo review and evidentiary standards)
- Von Behren v. Von Behren, 800 S.W.2d 919 (Tex.App.-San Antonio 1990) (grandparent standing framework and preponderance standard)
- Bradford v. Bradford, 971 S.W.2d 595 (Tex.App.-Dallas 1998) (appearance defined by participation; readiness declarations count)
- In re A.M.S., 277 S.W.3d 92 (Tex.App.-Texarkana 2009) (standing inference when no factual findings are requested)
- In re H.G., 267 S.W.3d 120 (Tex.App.-San Antonio 2008) (standing and procedural posture in family-court matters)