In Re: Tonya Lynn Pharis--Appeal from County Court at Law of Anderson County

NO. 12-06-00350-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: TONYA LYNN PHARIS, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

In this original proceeding, Tonya Lynn Pharis seeks a writ of mandamus ordering the trial court to vacate its order of September 21, 2006 denying Pharis s motion to dismiss a suit affecting the parent-child relationship of Pharis and her infant daughter, L.M.H. The suit was filed by Janie Elaine Chasten, L.M.H. s paternal grandmother.1 We deny the petition.

Procedural Background

Pharis gave birth to L.M.H. on August 16, 2006, and both mother and daughter were released from the hospital on August 21. Two days later, on August 23, Chasten filed an original suit requesting to be appointed L.M.H. s temporary sole managing conservator. Chasten alleged that she had standing to bring the suit in that the order requested is necessary because the child s present circumstances would significantly impair the child s physical health or emotional development. In her supporting affidavit, Chasten stated that [t]he mother of the child has not cared for the child over night [sic] since her birth last week and has only seen the child intermitten[t]ly. After a hearing, the trial court entered temporary orders appointing Chasten as L.M.H. s temporary sole managing conservator and appointing Pharis as her temporary possessory conservator. Pharis filed a motion to dismiss the suit alleging that Chasten did not have standing. The trial court conducted a hearing on Pharis s motion and on September 21, 2006 signed an order denying the motion. The record does not show that findings of fact and conclusions of law were requested or filed. This original proceeding followed.

Availability of Mandamus

Mandamus is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Mandamus is an appropriate vehicle to challenge a lack of jurisdiction to enter temporary orders in child custody matters because these temporary orders are not subject to interlocutory appeal. In re Lewin, 149 S.W.3d 727, 734 (Tex. App. Austin 2004, orig. proceeding); see Tex. Fam. Code Ann. 105.001(e) (Vernon Supp. 2006) (temporary orders in suit affecting parent-child relationship not subject to interlocutory appeal).

Abuse of Discretion

Pharis contends that Chasten did not have standing to institute the underlying suit. Accordingly, her argument continues, the trial court did not have subject matter jurisdiction of the suit and should have granted Pharis s motion to dismiss the suit.

Applicable Law

Subject matter jurisdiction is essential to a court s authority to decide a case. Tex. Ass n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is implicit in the concept of subject matter jurisdiction.2 Id. Subject matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. A grandparent s relationship to a child does not automatically confer standing to bring an original suit for managing conservatorship. See Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App. San Antonio 1990, writ denied). In the instant case, Chasten relied on Texas Family Code section 102.004 to establish standing. The relevant portion of this section provides that a grandparent may file an original suit requesting managing conservatorship if the grandparent provides satisfactory proof that 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. 2006).3 The standard for determining whether the grandparent s proof is satisfactory is a preponderance of the evidence. Von Behren, 800 S.W.2d at 921.

Discussion

The record of the hearing on Pharis s motion to dismiss shows that Pharis lived in Trinity with her boyfriend and his family prior to L.M.H. s birth.4 When Pharis and L.M.H. were released from the hospital, L.M.H. was jaundiced and had a doctor s appointment the following morning. In response to a question about whether the nurses required that Pharis s mother be there to take L.M.H. home, Pharis replied, Yes, sir. I was supposed to go home with my mother. However, she left the hospital with her boyfriend and sent L.M.H. home with her mother. Pharis explained that her boyfriend picked her up so she could get some of her clothes. She then planned to take him to the boat in Houston where he worked and keep his truck. She stated that she and her mother did not get along and that she needed transportation in case her mother upset her or made her mad enough that she wanted to leave.

Pharis stayed with her boyfriend overnight and arrived at her mother s house the next morning too late for L.M.H. s doctor s appointment. She testified that she rescheduled the appointment for later the same day, but did not explain her tardiness. After the appointment, Pharis returned to Trinity. Before Pharis left, Chasten asked her if she could keep L.M.H. for one night to allow her to spend time with her father, and Pharis consented. Chasten testified that after keeping L.M.H. overnight, she took her back to Pharis s mother, who expressed her physical inability to care for L.M.H. and asked Chasten to talk to an attorney. Chasten and Pharis s mother then went together to see an attorney, where both voiced their concern about what would happen to L.M.H. if Pharis got her back. Later that day, Chasten filed suit.

The above evidence does not reveal that Pharis exhibited any interest in being with L.M.H. upon their release from the hospital or that she expressed any concern about L.M.H. s medical condition. Pharis disregarded the instructions she received at the hospital in order to be with her boyfriend and was unavailable to spend time with or provide care for L.M.H. She ostensibly left with her boyfriend from the hospital to obtain his vehicle for transportation. Once she had possession of his vehicle, she did not stay at her mother s house with L.M.H., but returned to Trinity after L.M.H. s doctor s appointment. Moreover, she left L.M.H. in the care of her mother, who told Chasten that she was unable to physically care for the child and who was concerned about what would happen to the child if Pharis had possession of her. From this evidence, the trial court reasonably could have found, by a preponderance of the evidence, that the order Chasten sought was necessary because L.M.H. s present circumstances would significantly impair the child s physical health or emotional development. Consequently, Chasten met her burden to establish standing, and the trial court did not abuse its discretion in denying Pharis s motion to dismiss the suit.

Pharis urges that Chasten s suit was prompted by nothing more than Chasten s belief that she would be a better choice than Pharis for managing conservator of L.M.H. This argument is without merit in light of our holding that Chasten presented sufficient evidence to establish standing. Pharis also notes the absence of any evidence that L.M.H. had been harmed. However, section 102.004(a)(1) does not require a showing of actual harm to establish standing. Pharis also states that her boyfriend had ample income and that the home she shared with her boyfriend and his family was adequate for L.M.H. s care. Additionally, she points out that she does not have a criminal record and has never abused any substances or otherwise engaged in conduct that would be harmful to her child. However, section 102.004(a)(1) relates to the child s present circumstances. L.M.H. was not in Pharis s possession nor was she at the home where Pharis lived with her boyfriend and his family. Therefore, these facts are not dispositive.

In further argument, Pharis cites In the Interest of M.W., 959 S.W.2d 661, 666 (Tex. App. Tyler 1997, no writ), in which this court stated that when a parent and a nonparent both seek managing conservatorship, close calls go to the parent. In M.W., we noted the strong presumption under Texas law that the best interest of a child is best served if a parent is awarded custody. Id. at 665. We further noted that overcoming this presumption places a heavy burden on the nonparent seeking appointment as managing conservator. Id. at 665-66. However, M.W. was an appeal from a judgment appointing a grandparent as managing conservator. The parental presumption does not apply to the determination of standing to file a suit affecting the parent-child relationship. In the Interest of A.L.S., No. 09-05-00062-CV, 2006 Tex. App. LEXIS 332, at *9 (Tex. App. Beaumont Jan. 13, 2006, no pet.). Pharis cites a second case, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990), which also relates to overcoming the parental presumption in a suit for managing conservatorship. Because the issue in this proceeding relates solely to Chasten s standing, these cases are inapposite.

Conclusion

Based upon our review of Pharis s mandamus petition and the accompanying materials, we hold that Pharis has failed to show the trial court abused its discretion in denying her motion to dismiss Chasten s original suit for managing conservatorship of L.M.H. Accordingly, Pharis s petition for writ of mandamus is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered December 20, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 Chasten is the real party in interest. The respondent is the Honorable B. Jeffrey Doran, Judge of the County Court at Law, Anderson County, Texas.

2 Standing has been described as merely a right to be heard and not a right to win. See Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex. App. El Paso 2002, no pet.) (citing John J. Sampson, Vol. 93-2 State Bar of Texas Section Report Family Law 14 (1993)).

3 Although the prior version required an immediate question concerning the welfare of the child, the immediacy requirement is not included in the current version. Compare Act of June 20, 1987, 70th Legislature, R.S., ch. 744, 1, 1987 Tex. Gen. Laws 2666 (requiring satisfactory proof that the child s present environment presents a serious and immediate question concerning the child s physical health or welfare) and Tex. Fam. Code Ann. 102.004(a)(1) (requiring satisfactory proof that child s present circumstances would significantly impair child s physical health or emotional development).

4 Pharis s relationship with L.M.H. s father terminated sometime prior to L.M.H. s birth. The record does not indicate that Pharis and L.M.H. s father were ever married. Chasten stated in her supporting affidavit that my son is not a presumed father, but both he and the mother have completed and forwarded to Austin the necessary paperwork to establish his paternity. Pharis confirmed this at the hearing and stated that she believed Chasten s son to be L.M.H. s father.