In the Interest of L.D.F., a Child

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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No. 08-12-00347-CV

IN THE INTEREST OF L.D.F., §

A CHILD. Appeal from the

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383rd Judicial District

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of El Paso County, Texas

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(TC# 2011CM5118)

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OPINION

J.C. (“Father”), the biological father of L.D.F., appeals the trial court’s order in which

Father and L.D.F.’s maternal grandmother, M.F. (“Maternal Grandmother”) were appointed joint

managing conservators of L.D.F., and J.F. (“Mother”) was appointed possessory conservator. In

four issues, Father maintains that the trial court erred by finding that Maternal Grandmother had

standing to intervene in the SAPCR1 filed by Father, alternatively contending that the trial

court’s judgment failed to conform to intervenor Maternal Grandmother’s pleadings. We affirm.

BACKGROUND

Father contends that he is the biological father of L.D.F. Father and Mother met in 2010,

while both were under psychiatric care at University Behavioral Health of El Paso (“UBH”), a

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SAPCR is the recognized acronym for “suit affecting a parent-child relationship.”

private mental health hospital. Father has been diagnosed with bipolar disorder, and prior to the

filing of this suit, had been admitted to psychiatric hospitals for treatment, voluntarily and

involuntarily, five times in five years. Father was involved in a car accident in which he blacked

out and lost thirty minutes of memory leading to his most recent psychiatric hospitalization in

March 2011. The following month, April 2011, L.D.F. was born. After L.D.F.’s birth, his

Maternal Grandmother took possession of him, purportedly at the behest of Mother, who

continued to be hospitalized for unknown reasons.

In July 2011, three months after L.D.F.’s birth, Father filed suit against Mother to

establish paternity and sought sole managing conservatorship of L.D.F., asserting Mother could

be served at the El Paso Psychiatric Center. The following month, prior to the temporary orders

hearing, Mother filed a general denial and Maternal Grandmother filed a petition in intervention

for conservatorship seeking sole managing conservatorship. In August 2011, the trial court held

an abbreviated temporary orders hearing in which Mother began to testify before the court

recessed to speak to the attorneys off the record. The trial court subsequently explained on the

record that it had found that Mother was incompetent to stand trial and serve as a witness. The

court did not hear any further evidence or enter a ruling on the record prior to signing a

temporary order that day appointing Maternal Grandmother, paternal grandmother, paternal

grandfather, and Father as L.D.F.’s temporary joint managing conservators and Mother as

possessory conservator with no visitation. The temporary order was signed by Father, Maternal

Grandmother, paternal grandmother, and paternal grandfather, but not Mother although the order

indicates Mother was present for the hearing. The order did not name any party as a primary

managing conservator, nor was any party ordered to provide child support or medical insurance,

and L.D.F. was to spend every Monday from 4:00 p.m. to Thursday at 4:00 p.m. with his father

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and the remaining time with Maternal Grandmother. No other possession schedule was ordered.2

Father subsequently filed a plea to the jurisdiction, seeking dismissal of intervenor

Maternal Grandmother for lack of standing. The trial court denied the plea. During a hearing in

January 2012, Father testified that Mother received treatment at the El Paso Psychiatric Center

for about three months after L.D.F.’s was born. According to Father, he and Mother are in a

relationship. Father told the court that “we were supposed to locate an apartment, move in

together, establish and that [sic]. But for some odd reason, they kept her in the hospital for like

an extra three months.”

According to Father, in September 2011, he needed to go to Fredericksburg, Texas, to

take care of an outstanding warrant for possession of less than five grams of marijuana.

Mother’s sister lives in Fredericksburg, and Father asked if he could stay with her while he was

in town. While staying with Mother’s sister, Father was arrested for assaulting her. Father

maintained he pleaded guilty because “I had to. I had to come home and take care of my child.

What am I going to stay in jail for[?]” Father was in jail for one day.

Father lives with his parents, has a car, and receives disability benefits as the result of his

bipolar diagnosis; however, he would like to return to work. Father reported he takes his

prescription medication “at [his] leisure” for minor bipolar symptoms, although he is “not really

too sure.” Father testified that he sees his child from “7:00 Monday morning to 4:00 Thursday

evening” and picks up the child from Maternal Grandmother. Father takes care of L.D.F. until

his parents “arrive home from work about 4:00 to 5:00 in the afternoon.”

At the final hearing in April 2012, Father testified he and Mother were still in a

relationship, were still intimate, and were hoping to have more children. Father told the court

that he and Mother had lived together at his parent’s house for about a month and a half and then

2

Paternal grandparents never filed any pleadings in this case seeking intervention or conservatorship.

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“we lived in an apartment for a month.” Father also admitted he had hit Mother on her arm, and

when asked why, he replied, “[f]or some odd reason I do not know. Right here, she was walking

away.” Father remembered when Mother exhibited two black eyes, but denied knowing how she

received them. According to Father, Mother had been hospitalized at the El Paso Psychiatric

Center three times since L.D.F.’s birth. Father was prescribed lithium from a doctor at MHMR,

but had terminated his relationship with MHMR, and has not taken any medication since

September 2011.

Following the conclusion of the final SAPCR hearing, in which Father discussed his

psychiatric history, his criminal record, and his relationship with his son, the trial court issued an

order establishing Father as L.D.F.’s father. The SAPCR decree appointed Father and Maternal

Grandmother as joint managing conservators and Mother as possessory conservator, with no

primary conservator designation. Like the temporary order, no visitation was ordered for Mother

while Father’s period of possession began every week from Monday at 7:00 a.m. to Thursday at

4:00 p.m., and Maternal Grandmother was granted possession of the remainder of the week.

Further, no provision was made for any holiday possession schedule and neither parent was

ordered to provide child support or medical insurance. Father appealed.3

DISCUSSION

Standing

In Issues One and Three, Father contends that Maternal Grandmother has no standing to

intervene. Father argues his appointment as a joint managing conservator demonstrates the trial

court found Father was a fit parent who would not significantly impair the child’s physical health

or emotional development pursuant to TEX.FAM.CODE. ANN. § 102.004(b)(West 2014).

Therefore, the trial court erred by allowing Maternal Grandmother to intervene. In Issue Two,

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L.D.F.’s mother never participated in suit, apart from filing an answer and appearing briefly for testimony at the

temporary orders hearing before being adjudged incompetent to testify.

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Father alternatively claims that the trial court abused its discretion in appointing Maternal

Grandmother as a joint managing conservator because she failed to identify specific actions or

omissions indicating how Father’s sole managing conservatorship would significantly impair

L.D.F.’s physical health or emotional development. Lastly, Father complains the trial court erred

by appointing Maternal Grandmother a joint managing conservator when she only pled for

appointment of sole managing conservator; therefore, the trial court’s judgment did not conform

to her pleadings. We disagree with Appellant’s contentions.

Standard of Review and Applicable Law

“Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party’s lack of standing defeats a

court’s subject matter jurisdiction and renders any proceedings against that party void. Id.

Standing may arise either from judicially-recognized constitutional grounds or by statute.

Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2000). “When standing has been conferred by

statute, the statute itself serves as the proper framework for a standing analysis.” In re S.M.D.,

329 S.W.3d 8, 12 (Tex.App.--San Antonio 2010, pet. dism’d).

We review questions of standing de novo. Id. at 13. The party asserting standing bears

the burden of proof on this issue. Id. In assessing standing, we look primarily to the pleadings

and consider relevant evidence of jurisdictional facts “when necessary to resolve the

jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

We construe the pleadings in the petitioner’s favor, looking to the language to ascertain the

pleader’s intent. In re M.J.G., 248 S.W.3d 753, 757 (Tex.App.--Fort Worth 2008, no pet.);

Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex.App.--El Paso 2002, no pet.). In family law

cases in which a petitioner must go beyond mere pleading allegations and provide “satisfactory

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proof” of jurisdictional facts to establish statutory standing, the petitioner meets that burden

where those predicate facts are proven by a preponderance of the evidence. In re S.M.D., 329

S.W.3d at 13. “When, as in this case, the trial court does not make separate findings of fact and

conclusions of law” on the issue of intervenor standing, “we imply the findings necessary to

support the judgment . . . [and] review the entire record to determine if the trial court’s implied

findings are supported by any evidence.” Id.

“Generally, an intervenor must show standing to maintain an original suit in order to

intervene.” In re M.J.G., 248 S.W.3d at 757; see also TEX.FAM.CODE ANN. § 102.003(a)(West

Supp. 2014)(setting out list of parties with general standing to file a suit affecting the parent-

child relationship). However, per statute, a grandparent who would otherwise lack standing to

file an original SAPCR petition may obtain leave of court to intervene in a pending SAPCR

properly brought by a party with standing, provided the grandparent demonstrates, by a

preponderance of the evidence, “that appointment of a parent as a sole managing conservator . . .

would significantly impair the child’s physical health or emotional development.”

TEX.FAM.CODE. ANN. § 102.004(b); see also In re S.M.D., 329 S.W.3d at 13. The significant

impairment language in Section 102.004(b) mirrors identical language in Section 151.131

establishing the Family Code’s parental presumption and custody provision. Id. at 15. “In fact,

the grandparent must make the same showing to establish standing as a nonparent must make to

overcome the presumption that a parent is to be named managing conservator.” Id. at 15 & n.5.

Inclusion of this language in a set of 2005 amendments to the Family Code, Act of

May 27, 2005, 79th Leg., R.S., ch. 484, § 3, 2005 TEX.GEN.LAWS 1345,4 represents a legislative

response to the United States Supreme Court’s decision in Troxel v. Granville, in which a

4

Prior to 2005, grandparents did not have to prove any significant impairment of a child’s physical health or

emotional development as a prerequisite to intervene in a SAPCR. See, e.g., Chavez v. Chavez, 148 S.W.3d 449,

455-56 (Tex.App.--El Paso 2004, no pet.)(describing the standard for grandparent intervention as “relaxed”).

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plurality of the court struck down an overbroad Washington grandparent visitation statute that

failed to accord deference to a fit parent’s constitutionally protected child-rearing decisions. 530

U.S. 57, 68-9, 120 S.Ct. 2054, 2061-62, 147 L.Ed.2d 49 (2000); see In re Derzapf, 219 S.W.3d

327, 333 (Tex. 2007)(citing In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006))(noting that

identical health and emotional well-being language in Section 153.433 grandparent visitation

statute designed to protect fundamental parental rights “so long as a parent adequately cares for

his or her children (i.e., is fit). . . ”); In re K.D.H., 426 S.W.3d 879, 895-96 (Tex.App.--Houston

[14th Dist.] 2014, no pet.)(Jamison, J., dissenting)(noting that inclusion of health and emotional

well-being language in Section 102.004(a)(1) -- the provision granting standing to file original

SAPCR suits -- served to ensure the State complied with Troxel where parents are fit). Thus,

“[t]he jurisdictional requirement of standing helps ensure that a parent’s constitutional rights are

not needlessly interfered with through litigation.” In re Russell, 321 S.W.3d 846, 857

(Tex.App.--Fort Worth 2010, orig. proceeding)(suggesting that the 2005 standing amendments

represent legislative attempt to narrowly tailor infringement on parental liberty interest in child-

rearing).

Analysis

As a threshold matter, we quickly dispatch the argument Appellant advances in Issues

One and Three for resting on two flawed legal premises. First, we refute Appellant’s contention

that under the plain language of the Family Code, appointment of a parent in a limited

conservatorship capacity somehow automatically precludes appointment of a grandparent as joint

managing conservator by operation of law. The language in the Family Code is clear: if sole

managing conservatorship by one parent or joint managing conservatorship by both parents

would result in significant impairment of a child’s physical health or emotional development, the

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court has wide discretion to appoint conservators in the child’s best interest. TEX.FAM.CODE

ANN. § 153.131(a)(West 2014). While we agree with Appellant that Section 102.004(b),5 a

standing statute, does not grant the trial court power to appoint a parent and grandparent as joint

managing conservators, Section 153.372 specifically authorizes a nonparent to serve as a joint

managing conservator with a parent. TEX.FAM.CODE ANN. § 153.372(a); see also, e.g., In re

J.S.P., 278 S.W.3d 414, 417, 419 (Tex.App.--San Antonio 2008, no pet.)(where father had

limited cognitive abilities, limitation of father’s possessory rights by appointing him and

grandmother as joint managing conservators was a reasonable exercise of trial court’s

discretion). Thus, when the statutory provisions are read as a whole, it becomes clear that once a

non-parent surpasses the high bar set for intervenor standing under Section 102.004(b), the trial

court may allow the grandparent “to intervene and seek both managing and possessory

conservatorship.” In re S.M.D., 329 S.W.3d at 14; see also In re Hidalgo, 938 S.W.2d 492, 496

(Tex.App.--Texarkana 1996, no writ).

Second, Appellant’s argument that his appointment as a joint managing conservator

under these facts constituted an implicit fitness finding defeating intervenor jurisdiction is

fallacious. Where a trial court appoints a parent and nonparent as joint managing conservators, it

implicitly rules that parent’s sole custody would significantly impair the child’s physical health

or emotional development. See Maudlin v. Clements, 428 S.W.3d 247, 264 (Tex.App.--Houston

[1st Dist.] 2014, no pet.). Here, because the trial court permitted grandparent intervention and

joint custody in this case, we must assume it impliedly found that Appellant’s sole managing

conservatorship would significantly impair L.D.F.’s physical health or emotional development.

Id. As such, Maternal Grandmother’s standing ultimately turns on the question Appellant

presented in Issue Two: did the trial court abuse its discretion in making the implied adverse

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Section references are to the Family Code unless otherwise specified.

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welfare finding that served as a condition precedent for both interventor standing and a

modification of the custody arrangement?6 We find that it did not.

In assessing Maternal Grandmother’s standing, we interpret the “significant impairment”

language in Section 102.004 in light of our previous interpretations of identical language in

Section 153.131, the Family Code’s parental presumption and custody provision. In re S.M.D.,

329 S.W.3d at 15. To establish standing, Maternal Grandmother was required to show by a

preponderance of the evidence that “some specific, identifiable behavior or conduct of the parent

will probably cause” the requisite level of harm under the statute. In re De La Pena, 999 S.W.2d

521, 528 (Tex.App.--El Paso 1999, no pet.). “[P]hysical abuse, severe neglect, abandonment,

drug or alcohol abuse, or immoral behavior on the part of the parent” are all factors the trial court

may consider in assessing significant impairment. Id. While past misconduct alone “may not be

sufficient to show present unfitness,” we recognize “an adult’s future conduct may be somewhat

determined by recent past conduct.” Id. “Because safety, security, and stability are critical to

child development, the danger of uprooting a child may in some instances rise to a level that

significantly impairs the child’s emotional development.” Chavez, 148 S.W.3d at 458-59.

Here, there is more than enough evidence for Maternal Grandmother to meet her standing

burden and show that Appellant’s sole managing conservatorship would probably result in

significant impairment of L.D.F’s physical health or emotional development. Maternal

Grandmother testified that L.D.F. had become attached to her during the first three months of

infancy, and that L.D.F. would become upset when separated from her. We recognize early

childhood development as a factor the trial court may consider in its harm assessment. Id.

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Appellant did not argue in his brief that the joint managing conservatorship was not in the best interest of the child.

As such, we limit our analysis to the narrow question of standing.

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Furthermore, prior to suit, Appellant had been diagnosed with bipolar disorder, 7 and was

hospitalized for mental health reasons five times in five years. The Court is sensitive to the

issues surrounding mental health in the family law context, and we recognize that a parent’s

mental illness diagnosis alone does not necessarily demonstrate that a child’s physical health or

emotional development will be significantly impaired by parental custody. See, e.g., In re Allen,

359 S.W.3d 284, 291 (Tex.App.--Texarkana 2012, no pet.)(mother’s diagnosis of bipolar

disorder alone is insufficient to justify significant impairment of child finding). However, we

also recognize that “the trial court is in the best position to observe the witnesses and ‘feel’ the

forces, powers, and influences that cannot be discerned by merely reading the record[,]” and

therefore defer to its assessments, particularly in mental health cases, where those findings are

not an abuse of discretion. In re J.S.P., 278 S.W.3d at 418-19 [Internal quotation marks

omitted].

Additional evidentiary factors make Appellant’s diagnosis and psychiatric history

relevant. Appellant’s first psychiatric hospital stay more than a year before L.D.F.’s birth

stemmed from Appellant’s use of methamphetamine, an illegal substance. His second hospital

stay—a year before L.D.F. was born, at which time Appellant met L.D.F.’s mother—was an

involuntary two-week commitment stemming from his assault of his older brother. Seven

months prior to the final hearing in this case, while suit in this action was pending, Appellant

traveled to Fredericksburg to take care of an old warrant for marijuana possession. While in

Fredericksburg, Appellant was arrested for assaulting L.D.F.’s maternal aunt, with whom he was

staying.8 Furthermore, Appellant characterized his bipolar disorder as being mild, and

7

Appellant testified that he had initially been diagnosed as having both schizophrenia and bipolar disorder, but that

doctors later diagnosed him as only having bipolar disorder.

8

We note that Appellant’s admission that he once may have hit L.D.F.’s mother could have ostensibly precluded the

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maintained that his prior bad conduct stemmed from his illness, which is now under control.

However, he also testified at the final hearing that he was no longer under the care of any mental

health professionals after voluntarily terminating treatment, saying that he took lithium pills “at

[his] leisure” to control mood swings.

Taking all those factors together in the aggregate and viewing them in the proper

chronological context, we are unconvinced by Appellant’s argument that the taint of past bad

conduct is too attenuated to justify the trial court’s implicit adverse welfare finding. Although

Appellant testified that he independently washed, fed, and cared for L.D.F., Appellant had a

history of past drug use and various criminal cases against him, including one for which pled

guilty for an assault charge shortly before the final paternity hearing. The trial court did not

abuse its discretion in finding sufficient jurisdictional facts conferring standing on Maternal

Grandmother. Her intervenor status in this suit was proper.

Issues One, Two, and Three are overruled.

Pleadings

trial court from appointing him as a joint managing conservator at all. See TEX.FAM.CODE ANN. § 153.004(a)(in

appointing party as sole or joint managing conservator, trial court shall consider “intentional use of abusive physical

force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person

younger than 18 years of age . . . ”); TEX.FAM.CODE ANN. § 153.004(b)(court may not appoint party as joint

managing conservator if “credible evidence is presented of a history or pattern of . . . physical or sexual abuse by

one parent directed against the other parent . . . ” and rebuttable presumption against fitness is created); In re L.C.L.,

396 S.W.3d 712, 717 (Tex.App.--Dallas 2013, no pet.)(“A single act of violence or abuse can constitute a ‘history’

of physical abuse for purposes of section 153.004 . . . .”). Since the trial court appointed Appellant as a joint

managing conservator, we assume that it must not have found his testimony on that issue to be credible, and since

neither party raises this issue or challenges this implied finding, we end our analysis there.

As for the assaults against his brother and L.D.F.’s maternal aunt, they also could ostensibly constitute family

violence under TEX.FAM.CODE ANN. § 71.004(1)(West 2014), evidence which the court must consider in assessing

the scope of possession by a parent appointed as a possessory conservator. TEX.FAM.CODE ANN. 153.004(c).

Although Appellant was appointed joint managing conservator and not possessory conservator, the trial court is

barred from giving a parent “access to a child” where a preponderance of the evidence shows a history of family

violence unless (1) the court finds such an arrangement would not “endanger the child’s physical health or emotional

welfare and would be in the best interest of the child,” and (2) the order contains certain precaution measures to

mitigate the risk of future violence. TEX.FAM.CODE ANN. 153.004(d), (d-1). Because the parties also failed to raise

this issue, we do not address it, and take the arrests only as evidence of repeated run-ins with law enforcement and

not for the veracity of the alleged underlying conduct.

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In Issue Four, Appellant argues that the trial court erred by granting Maternal

Grandmother joint managing custody when she asked only for sole managing custody in her

pleadings. Maternal Grandmother responds that the variance between the relief granted and the

relief she requested is immaterial. We agree.

A trial judgment “shall conform to the pleadings . . .” in a given case. TEX.R.CIV.P. 301.

“In child custody cases, where the best interests of the child are the paramount concern, technical

pleading rules are of reduced significance.” Messier v. Messier, 389 S.W.3d 904, 907

(Tex.App.--Houston [14th Dist.] 2012, no pet.). “Pleadings must at a minimum notify the

opposing party of the claim involved.” Id. Here, Maternal Grandmother’s pleadings properly

placed Appellant on notice that she intended to seek custody of L.D.F. because Appellant’s sole

managing conservatorship would result in significant impairment to L.D.F.’s physical and

emotional welfare. The pleadings also properly established that Maternal Grandmother had

intervenor standing, and as we stated previously, the trial court had wide discretion to structure

the custody arrangement in L.D.F.’s best interest once her intervenor status was established.

Appellant’s pleading complaint is without merit.

Issue Four is overruled. We affirm the trial court’s judgment.

September 19, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

Rivera, J. (Not Participating)

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