In The Interest of B.J.S., A Minor Child--Appeal from 308th District Court of Harris County

Opinion issued November 21, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00080-CV

LYNDA JOY JOLLEY, Appellant

V.

SANDRA GAIL SAMPLES, Appellee

On Appeal from the 308th District Court

Harris County, Texas

Trial Court Cause No. 88-52907

O P I N I O N

Appellant, Lynda Joy Jolley, filed a suit affecting the parent-child relationship (SAPCR) to be appointed a joint managing conservator of the child, B.J.S. The trial court denied the petition on the basis that Jolley had no standing. Jolley then brought this appeal. We reverse and remand.

Procedural Background

Jolley brought this SAPCR suit pursuant to Section 102.003(9) of the Texas Family Code and petitioned the trial court to be appointed joint managing conservator of the child. The child s mother, appellee Sandra Gail Samples, initially opposed the appointment, but the parties eventually agreed to allow Jolley visitation rights in return for providing child support to Samples.

Jolley and Samples submitted an agreed order memorializing their agreement, but the trial court wrote denied on the order and made a docket entry of no controversy. The parties never learned about the denial.

Jolley then filed an unopposed motion for rendition of decree with proposed order appointing Jolley as joint managing conservator, which had been executed by both Jolley and Samples. At an oral hearing, the trial court was still unwilling to sign the proposed order and gave Jolley time to brief the no claim or controversy issue raised by the trial court. After receiving Jolley s brief, the trial court heard argument, and again denied Jolley relief, noting, no particular controversy on the docket sheet. It appears from the record that no evidence was heard at either of the hearings. The trial court then signed a final judgment denying all relief sought by Jolley. The trial court stated in its order, This Court declines to grant the relief sought in that no actual claim or controversy between the parties exists at this time.

Jolley filed both a motion for new trial and a motion to recuse the trial judge. The motion to recuse was denied just one day before the motion for new trial was to be overruled by operation of law. Although Jolley attempted to obtain a hearing on her motion for new trial, the trial court did not hold a hearing until after the motion for new trial had been overruled by operation of law. Jolley then filed a Motion To Invoke the Court s Plenary Power Regarding Petitioner s Motion for New Trial, to which she attached an affidavit setting forth the facts of her relationship with B.J.S. and his mother, Samples. This affidavit, however, was not before the trial court at the time it dismissed Jolley s case. Therefore, we do not consider the allegations in the affidavit on appeal. Instead, we look solely to the allegations of Jolley s petition to determine whether she has shown standing.

Standing to Bring the SAPCR

In point of error one, Jolley contends that the trial court erred by dismissing her SAPCR proceeding after concluding that Jolley had no standing.

Standard of Review

Because standing is a component of subject-matter jurisdiction, we review a trial court s determination of standing de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In reviewing a dismissal for lack of jurisdiction, we construe the pleadings in favor of the plaintiff and accept as true all of the factual allegations in the plaintiff s pleadings. Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App. Houston [14th Dist.] 2002, no pet.). Although we may consider evidence relevant to the jurisdictional issue, see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000), no evidence was presented to the trial court in this case.

Standing Under Section 102.003(a)(9)

The Family Code provides of laundry list of persons who have standing to file a SAPCR proceeding. See Tex. Fam. Code Ann. 102.003 (Vernon Supp. 2002). Jolley contends that she has standing to bring the SAPCR under section 102.003(a)(9) of the Texas Family Code, which provides:

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

(9) a person, other than a foster parent, 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.

Tex. Fam. Code Ann. 102.003(a)(9) (Vernon Supp. 2002).

Standing Allegations in the Petition

Jolley s petition recites the language of section 102.003(a)(9), and specifically alleges that the child has resided in the home of [Jolley] and [Jolley] has had care, control, and possession of the child for over six months ending not more than 90 days prior to the date of the filing of this petition. These standing allegations were never contested before the trial court. Likewise, there is no evidence in the record to show that the trial court ever held an evidentiary hearing on the standing issue. Absent evidence to the contrary, we accept the standing allegations as true. See Jansen, 14 S.W.3d at 431.

Because Jolley s petition alleges sufficient facts to establish standing under 102.003(a)(9), and there is no controverting evidence in the record, we hold that the trial court erred by dismissing Jolley s petition based on her lack of standing.

Conclusion

Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

Sherry Radack

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.