In the Interest of Carlos Alexander Romo, A Child--Appeal from 143rd District Court of Reeves County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF C.A.R., a Child,

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No. 08-01-00469-CV

Appeal from the

143rd Judicial District Court

of Reeves County, Texas

(TC# 01-08-17136-CVR)

O P I N I O N

This is an appeal from an order of dismissal. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Petitioner, Eliza Reyes Romo, filed an Original Petition for Child Custody requesting that she be named sole managing conservator of C.A.R. Romo is the biological sister of the minor child. After the death of C.A.R.=s mother, Teresa Reyes Romo, on November 25, 1998, C.A.R. lived with his aunt, Yolanda Reyes Nunez. Nunez was appointed legal guardian of C.A.R. on October 15, 1999. Nunez filed an answer in which she argued that Romo did not have standing to bring the suit under Section 102.003 of the Texas Family Code. Tex. Fam. Code Ann. ' 102.003 (Vernon 2002). Nunez also filed a Motion to Deny Relief in which she re-urged the standing issue. Romo then filed her First Amended Original Petition requesting that the trial court name her sole managing conservator of C.A.R. under Section 102.003(a)(13) of the Texas Family Code. Tex. Fam. Code Ann. ' 102.003(a)(13). After a hearing on the Motion to Deny Relief, the trial court dismissed the suit for Romo=s lack of standing.

II. DISCUSSION

In her sole issue on appeal, Romo argues that the trial court erred in finding that she had no standing to file the custody action and erred in dismissing the suit. We begin with a discussion of the standard of review.

A. Standard of Review

The question of who has standing to bring original suit affecting parent child relationship seeking managing conservatorship is threshold issue and the trial court should make its determination on issue of standing first, before merits of dispute are determined. In Interest of Pringle, 862 S.W.2d 722, 723 (Tex. App.--Tyler 1993, no writ). Standing is implicit in the concept of subject matter jurisdiction. Texas Ass=n of Business v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). Standing presents a question of law. Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex. App. Fort Worth 2001, no pet.). The standard of review of an order of dismissal for lack of standing is the same as that for an order of dismissal for lack of subject matter jurisdiction. Texas Ass=n of Business, 852 S.W.2d at 446. We Aconstrue the pleadings in favor of the plaintiff and look to the pleader=s intent.@ Id., (quoting Huston v. Federal Deposit Insurance Corporation, 663 S.W.2d 126, 129 (Tex. App. Eastland 1983, writ ref=d n.r.e.)). Consequently, we review the issue de novo.

B. Analysis

Romo sought to become sole managing conservator of C.A.R. under Section 102.003(a)(13) of the Texas Family Code, which provides:

(a) An original suit may be filed at any time by:

(13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child=s parents are deceased at the time of the filing of the petition.

Tex. Fam. Code Ann. ' 102.003(a)(13).[1] Romo asks this Court to construe this statute according to the Texas Government Code=s construction statutes.

The Code Construction Act requires a presumption that a statute was enacted in compliance with both the United States and Texas Constitutions, that the entire statute is intended to be effective, and that a just and reasonable result is intended. Tex. Gov=t Code Ann. ' 311.021 (Vernon 1998). The Supreme Court has emphasized that our objective when construing a statute is to determine and give effect to the Legislature=s intent. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). To ascertain legislative intent, we look first to the statute=s plain language. Id. We must review the terms of the statute in context. Id. Further, in construing a statute, we may consider the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, common law or former statutory provisions, and the consequences of a particular construction. Tex. Gov=t Code Ann. ' 311.023. Finally, we presume that the Legislature acted with knowledge of the common law and court decisions. Phillips, 995 S.W.2d at 658.

The statute=s plain language clearly provides that a person who is a relative of the child within the third degree by consanguinity may bring an original suit if the child=s parents are deceased at the time of the filing of the petition. Tex. Fam. Code Ann. ' 102.003(a)(13) (emphasis added). Romo established that she is the half-sister of C.A.R. Romo also established that their mother, Teresa, was deceased and argued that C.A.R.=s biological father was unknown and presumed dead. However, Nunez testified that Teresa told her that C.A.R.=s biological father was Artemio Martinez. She noted that Martinez was never married to Teresa, but that the two had a relationship around the time Teresa became pregnant with C.A.R. Teresa was married to Juan Manual Romo, but a blood test determined he was not the father of C.A.R. The efforts to locate Martinez for a paternity test were unsuccessful. There was no other evidence introduced as to the whereabouts of Martinez.

While Romo meets the statute=s requirement of being a relative of the child within the third degree by consanguinity, she cannot establish that both of C.A.R.=s parents are deceased. If the legislature had intended that it is enough to show that one parent is deceased and the other is unknown, as is the case here, the statute would reflect such language. Instead, the plain language requires that both parents be deceased at the time the petition is filed. Tex. Fam. Code Ann. ' 102.003(a)(13). Accordingly, we agree with the trial court that Romo did not

have standing to file suit. Issue No. One is overruled and the order of the trial court is affirmed.

December 5, 2002

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STEPHEN F. PRESLAR, Chief Justice (Ret.)

Before Panel No. 5

McClure, Chew, JJ., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.) sitting by assignment

(Do Not Publish)

[1] See this Court=s opinion in Doncerv. Dickerson, 81 S.W.3d 349 (Tex. App.--El Paso 2002, no pet.) for a comprehensive discussion of the development of the AStanding@statute.