IN RE: Charles Dwayne LANKFORD and Roberta Gresham, Relators
NO. 12-15-00149-CV
Court of Appeals of Texas, Tyler.
August 24, 2016
492 S.W.3d 681
Thomas W. Deaton, for Real Parties in Interest. Robert L. Flournoy & Robert T. Cain, for Relators. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley,
Thomas W. Deaton, for Real Parties in Interest.
Robert L. Flournoy & Robert T. Cain, for Relators.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
OPINION
JAMES T. WORTHEN, Chief Justice
Charles Dwayne Lankford and Roberta Gresham seek mandamus relief from the trial court‘s May 12, 2015 orders overruling their pleas to the jurisdiction and Lankford‘s motion to dismiss, and designating Stephanie Smith as a joint managing conservator of T.D.L. We deny the petition.
BACKGROUND
T.D.L. is the fourteen year old biological child of Charles Dwayne Lankford аnd Karla Frith, who were divorced in 2003. T.D.L. started living with Lankford when she was three months old after Lankford and her biological mother separated. From 2003 until sometime in 2007, Lankford worked “outside of the States.” During that time, Roberta Gresham, who is Lankford‘s mother and T.D.L.‘s grandmother, lived in Lankford‘s house with T.D.L.
Lankford and Stephanie Smith married in 2008, but had been together since sometime in 2007. T.D.L. was approximately five years old when the relationship began. From 2007 to 2012, Lankford worked out of town, and was away from home between fifty and eighty percent of the time. Smith
In November 2014, Smith filed for divorce at Lankford‘s request. Her petition included a motion to modify the existing conservatorship order to appoint Smith and Lankford as joint managing conservators of T.D.L. Smith also requested that she be designated as the conservator having the exclusive right to designate T.D.L.‘s primary residence. She alleged that she has standing under
Through various errors and misunderstandings that occurred in prior proceedings, the existing conservatorship order, which was rendered in 2004, made Gresham managing conservator and Lankford and Frith possessory conservators. However, Lankford believed the three were joint managing conservators. He also believed that he had the right to designate T.D.L.‘s residence.
In December 2014, Lankford and Gresham filed a motion to modify the 2004 order to make them joint managing conservators.3 Additionally, they asserted that Smith‘s motion to modify must be filed in the pre-existing suit affecting the parent-child relationship (SAPCR). Smith moved to sever the conservatorship issue and consolidate it with the SAPCR. The trial court granted the motion. Lankford filed a plea to the jurisdiction and motion to dismiss alleging Smith lacked standing. Gresham raised the issue in her answer. After a hearing, the trial court concluded that Smith has standing undеr
PREREQUISITES TO MANDAMUS
Mandamus is an extraordinary remedy that is available only when the trial court has clearly abused its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36, 137 (Tex.2004) (orig. proceeding). A clear abuse of discretion occurs when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.
The improper denial of a plea to the jurisdiction is generally not reviewable by mandamus bеcause it involves a question of law that can be addressed by ordinary appeal. See In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex.2003) (orig. proceeding). However, mandamus review is appropriate when there is a jurisdictional
STANDING
A party seeking conservatorship of a child must have standing to do so. In re McDaniel, 408 S.W.3d 389, 396 (Tex.App.-Houston [1st Dist.] 2015, orig. proceeding). Because standing is implicit in the concept of subject matter jurisdiction, it is a threshold issue in a conservatorship proceeding. In re N.L.D., 344 S.W.3d 33, 37 (Tex.App.-Texarkana 2011, no pet.). A party‘s lack of standing deprives the court of subject matter jurisdiction and renders subsequent trial court action void. In re Smith, 260 S.W.3d 568, 572 (Tex.Apр.-Houston [14th Dist.] 2008, orig. proceeding).
Whether a trial court has subject matter jurisdiction is a question of law, which we review de novo. In re K.D.H., 426 S.W.3d 879, 882 (Tex.App.-Houston [14th Dist.] 2014, no pet.). In our review, we must take as true all evidence favorable to the challenged party, indulge every reasonable inference, and resolve any doubts in the challenged party‘s favor. McDaniel, 408 S.W.3d at 397.
The Texas Legislature has provided a comprehensive framework for standing in the context of suits involving the parent-child relationship. See
We review the trial court‘s interpretation of the applicable statutes de novo. In re Russell, 321 S.W.3d 846, 856 (Tex.App.-Fort Worth 2010, orig. proceeding [mand. denied]). We must give effect to the legislature‘s intent from the language used in the statute and not look to еxtraneous matters for an intent the statute does not state. In re Shifflet, 462 S.W.3d 528, 536 (Tex.App.-Houston [1st Dist.] 2015, orig. proceeding). We presume that the legislature chooses a statute‘s language with care, and includes each word chosen for a purpose while purposefully omitting words not chosen. In re M.N., 262 S.W.3d 799, 803 (Tex.2008). We use definitions prescribed by the legislature and any technical or particular meaning the words have acquired.
TEXAS FAMILY CODE SECTION 102.003(a)(9)
A person who, at the time of filing, has standing to sue under Chapter 102 of the family code may seek modification of an existing conservatorship order.
ACTUAL CONTROL—THE SPLIT OF AUTHORITY
Lankford and Gresham do not dispute that Smith had care and possession of T.D.L. for the required time period. Nor do they argue that Smith lacks standing under the trial court‘s construction of the statute. Instead, they assert that the trial court applied an incorrect definition of “control” as that term is used section 102.003(a)(9). As a result, they maintain, the trial court abused its discretion when it ruled that Smith has standing under subsection (a)(9).
“Control” is not defined in the family code, and neither the Texas Supreme Court nor this Court has dеfined the term in this context. Consequently, Lankford and Gresham have surveyed the cases defining or applying the term as used in
Legal Control Required
Lankford and Gresham insist that to have standing under subsection (a)(9), Smith must establish that she has had “legal control” over T.D.L. They urge that she has not met this burden. As support for their position, they cite In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2008, orig. proceeding).
In K.K.C., a nonparent filеd an original SAPCR asserting standing under subsection (a)(9). Id. at 791. The nonparent lived with the child and the child‘s mother from 2001 until 2008 and produced extensive evidence describing his relationship with the child. See id. In addressing the nonparent‘s standing, the Beaumont court of appeals focused on whether the nonparent had “control” of the child as required by the statute.
The court first noted that the fundamental liberty interest of parents in the “care, custody, and control” of their children has long been recognized by the United Statеs Supreme Court and Texas courts. See id. at 792 (citations omitted). The court then stated that, “so long as a parent adequately cares for his or her children (i.e., is fit), 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.” Id. at 792 (quoting Troxel v. Granville, 530 U.S. 57, 68-69 (2000)).4 The court
The court opined that, in light of these principles, “‘control,’ as used in subsection (a)(9), must mean something more than the control implicit in having care and possession of the child if the word is to be given effect and treated as more than surplusage.” Id. at 792. Therefore, “[t]he word must be understood in the context of the rights, duties, and responsibilities of a parent.” Id. The court then concluded that “control” refers to “the power or authority to guide and manage, and includes the authority to make decisions of legal significance for the child.” Id. at 793. Applying this definition, the court, with one judge dissenting, held that the nonparent did not have standing. Id. at 794.
The Fort Worth and San Antonio courts of appeals have followed K.K.C. See In the Interest of H.S., No. 02-15-00303-CV, 2016 WL 4040497, at *5 (Tex.App.-Fort Worth July 28, 2016, no pet. h.) (mem. op.) (modification suit); In the Interest of N.I.V.S., No. 04-14-00108-CV, 2015 WL 1120913, at *5 (Tex.App.-San Antonio Mar. 11, 2015, no pet.) (mem. op.) (original SAPCR).
Legal Control Not Required
A case decided by the Austin court of appeals represents the contrary line of authority. See generally Jasek v. Tex. Dep‘t of Family & Protective Servs., 348 S.W.3d 523 (Tex.App.-Austin 2011, no pet.). In Jasek, the Texas Department of Family and Protective Services (DFPS), as sole managing conservator, placed two children with the Jaseks under a “Placement Authorization.” Id. at 527. The authorization imposed certain duties and limitations on the Jaseks and authorized DFPS, “at its sole discretiоn,” to remove the children from the Jaseks “at any time, subject to applicable court orders.” Id. Two years later, DFPS removed the children, and the Jaseks requested to be appointed the children‘s joint managing conservators. Id.
As pertinent here, DFPS asserted the Jaseks could not establish standing under section 102.003(a)(9) because they did not have legal control of the children during the placement. Id. The trial court agreed with DFPS, but the appellate court did not and reversed and remanded. Id. at 527, 538. In its analysis, the court conducted an extensive examination of the plain language of subsection (a)(9), the definitions and usage of the terms “actual” and “control,” and existing case law. Id. at 532-37.
The court first noted that the adjective “actual” modifies each of the three nouns that follow it: care, control, and possession. Id. at 532. Therefore, a person asserting standing under subsection (a)(9) must show that she has had actual care, actual control, and actual possession of the child for the required time period. Id. The court then stated that “actual” is a commonly used word that means “existing in fact or reality.” Id. at 532 (quoting WEBSTER‘S THIRD NEW INT‘L DICTIONARY 22 (2002)). This definition, the court observed, is consistent with the use of the word “actual” in legal contexts to indicate something that exists in fact as opposed to “constructive“—“something that exists by virtue of
Based upon the definitions of “actual” and “contrоl,” the court concluded that “actual control,” as used in section 102.003(a)(9), means “the actual power or authority to guide or manage or the actual directing or restricting of the child, as opposed to legal or constructive power or authority to guide or manage the child.” Id. In the court‘s view, “these words reflect the Legislature‘s intent to create standing for those who have, over time, developed and maintained a relationship with a child entailing the actual exercise of guidance, governance[,] and direction similar to that typically exercised by parents with their children.” Id.
The Austin court found only two cases addressing “actual control” separately rather than in combination with “care” and “possession“—In re Kelso, 266 S.W.3d 586 (Tex.App.-Fort Worth 2008, orig. proceeding), and K.K.C., which we discussed earlier.5 See Jasek, 348 S.W.3d. at 548. After examining each case, the court respectfully disagreed with its sister courts’ conclusions that “actual control” exists only when a parent or conservator has relinquished rights over a child (Kelso) or when the person asserting standing has the ultimate legal authority to control the child (K.K.C.). See id. at 534-37. Specifically, the court noted that nothing in section 102.003(a)(9) imposes either requirement. Id. at 535. Further, the court concluded that limiting standing under subsection (a)(9) to those having the ultimate legal right to control a child would require reading words into the text “that are not there” and render the word “actual” either superfluous or meaningless. See id.
Several other courts of appeals have applied the Jasek definition of “actual control.” See In the Interest of K.G., No. 05-14-01171-CV, 2016 WL 3265215, at *6 (Tex.App.-Dallas June 13, 2016, no pet.) (mem. op.); In the Interest of K.S., No. 14-15-00008-CV, 2016 WL 1660366, at *4 (Tex. App.-Houston [14th Dist.] Apr. 26, 2016, pet. denied) (оp.); Interest of B.A.G., No. 11-11-00354-CV, 2013 WL 364240, at *10 (Tex.App.-Eastland Jan. 13, 2013, no pet.) (mem. op.); In the Interest of K.K.T., No. 07-11-00306-CV, 2012 WL 3553006, at *4 (Tex.App.-Amarillo Aug. 17, 2012, no pet.) (mem. op.).
LANKFORD AND GRESHAM‘S ARGUMENTS
Lankford and Gresham maintain that the K.K.C. “legal control” standard is necessary to protect a parent‘s liberty interest in the care, custody, and control of his children. They also argue that if the Jasek
Protection of parental constitutional rights
Lankford and Gresham point out that, in a proceeding to modify a managing conservatorship order, there is nо presumption that appointment of a parent is in the best interest of the child. Thus, they characterize standing as “the one bulwark Texas law affords” to protect a parent‘s fundamental constitutional right to direct the upbringing of his children. Accordingly, they conclude that in the absence of the parental presumption, the “legal control” requirement must be imposed to protect the parent‘s rights when modification of a conservatorship order is sought. They maintain further that section 102.003(a)(9) cannot be in compliance with the United States and Texas Constitutions, as intended by the legislature, unless it complies with Troxel v. Granville.
1. The parental presumption. The presumption that the best interest of the child is served by awarding conservatorship to the child‘s parent is deeply embedded in Texas law. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). This presumption is based upon the natural affection usually flowing between parent and child. Id. (citing Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955)). The presumption is codified in the chapter of the family code that governs original SAPCRs, but not in the chapter that governs modification suits. See
By requiring application of the parental presumption in original SAPCRs but not in modification suits, the legislature balanced the rights of the parents “in the care, custody and control of their child” and the best interest of the child, which includes the child‘s interest in stability. See In re C.A.M.M., 243 S.W.3d 211, 216 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (citation оmitted). When those two interests compete and the legislature has authorized modification in the circumstances presented, the child‘s interest in stability prevails over the parent‘s right to primary possession. See id. Lankford and Gresham argue, in substance, that because this balance favors the child, Troxel mandates a narrow construction of section 102.003(a)(9), i.e., the “legal control” requirement, to protect the parent.
2. Troxel v. Granville. The dispute in Troxel arose between a mother and her children‘s paternal grandparents after the mother sought to limit the grandparents’ visitation with the children. The grandparents petitioned for visitation rights under a Washington state statute allowing “[a]ny person” to petition the court for visitation rights “at any time.” Troxel v. Granville, 530 U.S. 57, 61 (2000). A court could grant the requested visitation rights “whenever visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Id., 530 U.S. at 61. Ultimately, a plurality of the Court held that, as applied, the statute violated the Due Process Clause becausе it infringed on a parent‘s right to make decisions concerning the care, custody, and control of the parent‘s children. Id., 530 U.S. at 66-67.
The Court described the Washington statute as “breathtakingly broad.” Id., 530 U.S. at 67. Moreover,
The Court then made the statement quoted in K.K.C.: “[S]o long as a parent adequately cares for his or her children (i.e., is fit), 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 оf that parent‘s children.” Id., 530 U.S. at 68; see K.K.C., 292 S.W.3d at 792. According to Lankford and Gresham, this statement supports their conclusion that section 102.003(a)(9) cannot pass constitutional muster if the Jasek definition of “control” is correct.
We note, however, that the order under review in Troxel was an original determination of grandparent visitation rights. Thus, the Court did not address modification of conservatorship orders. Additionally, the parental presumption applied in Troxel. But when modification of conservatorship is sought, Texas courts do not apply the parental presumption, and no finding of parental unfitness is required. See
“Stepparent Standing”
A person has standing under family code section 102.003(a)(11) to request modification of a conservatorship order if the child and her parent resided with the person for at least six months ending not more than ninety days preceding the date the petition is filed and the parent is deceased when the petition is filed.
Subsection (a)(11) was designed as a “stepparent” statute, affording standing to
Subsection (a)(9) affords standing for those who have developed and maintained a relationship with a child over time. E.G.L., 378 S.W.3d at 547; In re Y.B., 300 S.W.3d at 4. This relationship comprises “actual care, control, and possession of the child.” See
Based upon the plain language of subsections (a)(9) and (a)(11), a stepparent or any other person can assert standing to seek modification of a conservatorship order under (a)(9), (a)(11), or both when a parent is deceased. In other words, (a)(9) and (a)(11) are not mutually exclusive. See Jasek, 348 S.W.3d at 535.
A person seeking standing when a child‘s parent has died must show only that thе child and the child‘s parent resided with the person for the required time period. See
Summation
Troxel does not cast doubt on the constitutionality of section 102.003(a)(9) if the Jasek definition of “actual control” is applied. And we do not address Lankford and Gresham‘s argument relating to the effect on subsection (a)(11) if the Jasek definition of “actual control” applies. Further, we conclude that, had thе legislature intended “control” to mean “legal control” instead of “control” in its ordinary sense, it could easily have defined it as such. Or it could have defined “actual control” to mean “legal control.” But it did neither. Therefore, we agree with the reasoning in Jasek and hold that its definition of “actual control” reflects the legislature‘s intent when it enacted the “control” requirement of section 102.003(a)(9). Accordingly, we also hold that the trial court did not abuse its discretion in applying the Jasek definition of “actual control” to determine whether Smith had standing under subsection (a)(9). And Lankford and Gresham do not alternatively contend that, if the Jasek definition is correct, the trial court misapplied it to the facts at hand.
CONCLUSION
Lankford and Gresham have not established that the trial court incorrectly determined the law or misapplied the law to the facts. Therefore, they have not shown
JAMES T. WORTHEN
Chief Justice