In re Madeline Moore, Brian Moore, and Ty Clevenger--Appeal from 82nd District Court of Robertson County
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IN THE
TENTH COURT OF APPEALS
No. 10-09-00376-CV
IN RE MADELINE MOORE,
BRIAN MOORE, AND TY CLEVENGER
Original Proceeding
MEMORANDUM OPINION ON REHEARING
Relators Madeline Moore and Brian Moore have filed a motion for rehearing, a
supplement to the motion, and a second supplement to the motion that ask us to rehear
their first issue because the presently assigned judge subsequently heard and denied
their motion to dismiss for lack of jurisdiction. We requested and received a response
to the motion for rehearing. In the interest of judicial economy, we grant the motion for
rehearing and will address issue one.
Issue one asserts that the trial court lacks jurisdiction because Real-Parties-inInterest Tracey and Timothy Moore lack standing. The Relators filed a motion to
dismiss the underlying proceeding on the basis that the Real Parties lack standing to file
the underlying SAPCR and the trial court thus lacked subject-matter jurisdiction.
The Family Code provides the following for grandparent standing:
(a) In addition to the general standing to file suit provided by
Section 102.003, a grandparent, or another relative of the child related
within the third degree by consanguinity, may file an original suit
requesting managing conservatorship if there is satisfactory proof to the
court that:
(1) the order requested is necessary because the child’s
present circumstances would significantly impair the child’s physical
health or emotional development; …
TEX. FAM. CODE ANN. § 102.004(a)(1) (Vernon Supp. 2009).
Standing, which is implicit in the concept of subject-matter jurisdiction, is
a threshold issue in a custody proceeding. See Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); In re SSJ-J, 153 S.W.3d 132, 134
(Tex. App.—San Antonio 2004, no pet.). We review a party’s legal
standing, which is a question of law, under the de novo standard.
Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 670
(Tex. App.—Houston [14th Dist.] 2006, pet. denied), cert. denied, --- U.S. ---,
128 S.Ct. 432, 169 L.Ed.2d 261 (2007). We construe the petition in favor of
the pleader, and determine whether any evidence in the record supports
standing. Id. at 671. Standing is determined as of the time that suit was
filed in the trial court. Tex. Ass’n of Bus., 852 S.W.2d at 446 n.9.
In re Vogel, 261 S.W.3d 917, 922 (Tex. App.—Houston [14th Dist.] 2008, orig.
proceeding).
In their petition requesting managing conservatorship, the Real Parties alleged
that they have standing because they are the paternal grandparents of R.K.M., the
minor child who is the subject of the suit. They further alleged that: R.K.M.’s parents
(the Relators) are incapable of adequately caring for him because they take and/or sell
“illegal substances such as marijuana;” the Relator Madeline Moore has been arrested
and charged with marijuana possession; CPS sought and obtained a voluntary
In re Madeline Moore, Brian Moore, and Ty Clevenger
Page 2
placement of R.K.M. away from the Relators; R.K.M. was currently in the possession of
Michael McCartney, the maternal grandfather; and the “child’s present environment
with [Relators] and the present circumstances of the child being left with [Relators]
would significantly impair and risk the child’s physical health and/or emotional
development.”
At the hearing for temporary orders on the Real Parties’ petition, there was
evidence that CPS investigated the Relators on allegations of neglect (that R.K.M. was
underweight and had diaper rash) and marijuana use by R.K.M.’s mother, that R.K.M.’s
mother cared for him while under the influence of marijuana, that CPS found evidence
of marijuana use and neglect, that R.K.M.’s mother had been arrested for marijuana
possession, and that CPS voluntarily placed R.K.M. with McCartney and the Relators
were living in a travel trailer behind McCartney’s home and helping care for R.K.M.
Given this evidence, we conclude that the trial court reasonably could have
found that R.K.M.’s circumstances would significantly impair his physical health or
emotional development. See Vogel, 261 S.W.3d at 922. Based on the pleadings and the
evidence, we hold that the Real Parties established standing to petition for managing
conservatorship of their grandson, and we deny the petition for writ of mandamus as to
issue one.1 See id.
REX D. DAVIS
Justice
In their “Second Supplement in Support of Motion for Rehearing,” the Relators request us to grant
mandamus relief on the assigned judge’s denial of their “Motion to Void the Orders of Judge Robert M.
Stem.” The Relators requested similar relief in issue five, and in our original opinion, we summarily
denied that issue. We summarily deny this similar request on rehearing.
1
In re Madeline Moore, Brian Moore, and Ty Clevenger
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the denial of the petition for writ of mandamus.
He does not join the opinion. A separate opinion will not issue.)
Motion for rehearing granted; petition denied as to issue one
Opinion delivered and filed July 7, 2010
[OT06]
In re Madeline Moore, Brian Moore, and Ty Clevenger
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