In re Interest of H.S.

Attorneys

• Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, Charla F. Moore, Moore Family Law Firm, Arlington, TX, Katherine Marie Allen, Allen & Weaver, P.C., Euless, TX, for Petitioners C.M. and S.M.
• Kirk L. Pittard, Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston, TX, Dava Greenberg-Spindler, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX, Kaye Lynne Boll, Law Office of Kaye Lynne Bol, North Richland Hills, TX, Sarraine S. Krause, Law Office Of Sarraine S. Krause, Forth Worth, TX, for Respondents A.G. and B.A.S.
• Deterrean S. Gamble, John B. Worley, Rande K. Herrell, Office of the Attorney General, Austin, TX, Jonathan Fox, Office of the Attorney General, Arlington, TX, for Office of the Attorney General.
• Heather lived in her maternal grandparents' home for the first 23 months of her life. During the last eight of those months, her grandparents were her primary caretakers and providers. The issue here is whether the grandparents, having continuously engaged in that parent-like role on a day-to-day basis, had standing to pursue a suit affecting the parent-child relationship (SAPCR) under the Texas statute conferring such standing on nonparents who have had "actual care, control, and possession of the child for at least six months." TEX. FAM. CODE § 102.003(a)(9). Both the trial court and the court of appeals concluded the grandparents lacked standing. We disagree. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.
• Mother testified that she did not have a specific time frame in mind for her stay at Oxford, though she initially anticipated being there no more than three months. She also testified that, while living at Oxford, she would go to Grandparents' house in the evenings and would "have dinner with [Heather], bathe her, put her to bed, spend time with her." The record is not clear about the frequency of these visits, although the trial court found that Mother saw Heather "on a regular basis." Mother also sometimes picked Heather up from daycare when she was able to get a car. Father's exercise of his possession rights when Mother moved to Oxford was "sporadic" for the first few months or so, after which Heather stayed with him approximately every other weekend, sometimes commencing on Thursday.
• After Mother moved to Oxford, Grandparents directed Heather's day-to-day activities and took care of her daily needs; provided her with a home, food, clothing, and shelter; and paid for her daycare. They necessarily decided when Heather would start her day, what she would eat for meals, what clothing she would wear, what activities she would participate in, whether she would be restricted from watching television or encouraged to play outside. In short, they managed and controlled her everyday activities. They also ensured that her nutritional, physical, emotional, and psychological needs were addressed, while providing her with a nurturing home. When she awoke in the middle of the night, they were there to comfort her, and when she scraped her knee, she could depend on them to stop the bleeding. Indeed, Father agreed, and the trial court found, that Grandparents were Heather's "primary caregivers" from March to October 2014.
• Grandparents also took Heather to the doctor or to urgent care when necessary, although Mother and Father were also involved in medical decisions. The trial court found that both Mother and Grandmother made doctor's appointments for Heather, and Grandmother testified that Mother attended some, but not all, of those appointments. Mother provided authorization for Grandparents to take Heather to a specific doctor's office and to obtain emergency treatment. Father also testified that he authorized Grandparents to obtain necessary emergency treatment for Heather but that, on a few occasions, a medical provider obtained his consent over the phone to treat Heather. The parties generally agree, and the trial court found, that Grandparents kept Mother and Father informed about Heather's daily activities and medical needs and "sought input" from them on decisions that needed to be made about her.
• Mother and Father both testified that they intended the arrangement with Grandparents to be temporary while Mother was in recovery. Mother also testified, and the trial court found, that she did not intend to relinquish her care and control of Heather to Grandparents. However, by early October 2014, Mother remained at Oxford, while Heather still lived with Grandparents. On October 6, Grandparents filed a petition to modify the SAPCR order requesting that they be appointed Heather's managing conservators with the right to designate her primary residence. They alleged that they had had actual care, control, and possession of Heather for six months and thus had standing to sue as nonparents under Family Code section 102.003(a)(9). Father filed a counterpetition to modify the possession order and filed a plea to the jurisdiction seeking dismissal of Grandparents' petition for lack of standing.
• In January 2015, the associate judge entered temporary orders appointing Father "primary" managing conservator and granting Mother supervised visitation. The trial court held a hearing on Father's plea to the jurisdiction and granted the plea, dismissing Grandparents' petition. The trial court also entered an agreed order (as between Mother and Father) appointing Heather's parents joint managing conservators, granting Father the right to designate Heather's primary residence within Tarrant County, granting Mother possession of Heather "at times mutually agreed to in advance by the parties," and requiring Mother to pay child support. In its findings of fact and conclusions of law, the court determined that Grandparents did not establish that they had "actual care" or "actual control" over Heather for the six-month period preceding their petition filing.
• Grandparents appealed. The court of appeals affirmed, holding that "standing under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child's parent is unfit or has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period." 552 S.W.3d 282, 289, 2016 WL 4040497 (Tex. App.-Fort Worth 2016) (mem. op.). We granted Grandparents' petition for review.
• The only issue presented is whether Grandparents had standing under the Family Code to file a SAPCR seeking conservatorship of Heather. With that in mind, we note the significance of the stage of the case before us. Generally, standing involves a threshold determination of whether a plaintiff has a sufficient "justiciable interest" in the suit's outcome to be entitled to a judicial determination. Austin Nursing Ctr. v. Lovato , 171 S.W.3d 845, 848-49 (Tex. 2005). "Without standing, a court lacks subject matter jurisdiction" over the case, and the merits of the plaintiff's claims thus cannot be litigated or decided. Id. at 849 ; see also Brown v. Todd , 53 S.W.3d 297, 305 (Tex. 2001) ("The standing doctrine identifies those suits appropriate for judicial resolution."). Here, the merits of Grandparents' claims-that is, whether they should be appointed Heather's managing conservators with the right to designate her primary residence-have not yet been considered by any court and are not before us. See In re Smith , 260 S.W.3d 568, 573 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (explaining, in a suit involving grandparent access, that "whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit"). Thus, this case is not about whether Grandparents will prevail in their suit; it is about whether they may bring it in the first place. And without standing, Grandparents are precluded not only from seeking custody of Heather but also from seeking any type of visitation with her at all.
• Because standing to bring a SAPCR is governed by statute, we apply statutory-interpretation principles in determining whether a plaintiff falls within the category of persons upon whom such standing has been conferred. See Tex. Dep't of Protective & Regulatory Servs. v. Sherry , 46 S.W.3d 857, 861 (Tex. 2001). When interpreting statutes, we presume the Legislature's intent is reflected in the words of the statute and give those words their fair meaning. In re C.J.N.-S. , 540 S.W.3d 589, 591 (Tex. 2018). We analyze statutes "as a cohesive, contextual whole, accepting that lawmaker-authors chose their words carefully, both in what they included and in what they excluded." Sommers v. Sandcastle Homes, Inc. , 521 S.W.3d 749, 754 (Tex. 2017) ; see also R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 628 (Tex. 2011) ("When the Legislature uses a word or phrase in one portion of a statute but excludes it from another, the term should not be implied where it has been excluded.").
• Section 102.003, entitled "General Standing to File Suit," enumerates fourteen categories of persons who have standing to file a SAPCR. TEX. FAM. CODE § 102.003(a) ; see also id. § 156.002(b) ("A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction."). Grandparents rely on subsection (a)(9), which confers such standing on "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." "In computing the time necessary for standing" under this subsection, courts "shall consider the child's principal residence during the relevant time." Id. § 102.003(b). We read this language to exclude nonparents who do not share a principal residence with a child for the statutory time period from establishing standing under section 102.003(a)(9), regardless of how extensively they participate in caring for her. In this case, the parties do not dispute that Grandparents meet the statute's "actual possession" requirement. Rather, the dispute focuses primarily on what is required to have "actual care [and] control" of a child for the requisite time period.
• Other courts have concluded that, considering the control requirement "in the context of the rights, duties, and responsibilities of a parent," the statute requires a "legal right of control over the child" that "includes the authority to make decisions of legal significance for the child."
• In re K.K.C. , 292 S.W.3d 788, 793 (Tex. App.-Beaumont 2009, orig. proceeding). The court in In re K.K.C. held that a nonparent did not have standing under section 102.003(a)(9) when the child's parent also "adequately cared for the child, and did not relinquish to [the nonparent] or abdicate her parental rights, duties, and responsibilities." Id. The court of appeals in this case, emphasizing parents' fundamental liberty interest in directing their children's upbringing, agreed with the latter line of authority and concluded that "standing under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child's parent is unfit or has abdicated his or her own care, control, and possession." 552 S.W.3d at 289.
• The Jasek court concluded that these words "reflect the Legislature's intent to create standing for those who have, over time, developed and maintained a relationship with a child entailing the actual exercise of guidance, governance and direction similar to that typically exercised by parents with their children." 348 S.W.3d at 533 ; see also Coons-Andersen v. Andersen , 104 S.W.3d 630, 636 (Tex. App.-Dallas 2003, no pet.) (noting that " section 102.003(a)(9) is in complete harmony with the common law doctrine of in loco parentis: a person who assumes the duties of a parent ... has the right to be a party in a lawsuit involving the child's custody"). We agree. The Legislature did not use the phrase "legal custody," "legal control," "constructive control," or any other language indicating that it intended formal legal authority over the child to be a condition for standing under subsection (a)(9). Had the Legislature intended to require such authority, it would have said so. See, e.g. , Uniform Child Custody Jurisdiction and Enforcement Act, TEX. FAM. CODE § 152.102(11), (14) (differentiating between "legal custody"-defined as "the managing conservatorship of a child"-and "physical custody"-defined as "the physical care and supervision of a child"); TEX. EDUC. CODE § 38.053 ("The student's parent or guardian or another person having legal control of the student may give consent for a student to receive ongoing services.").
• The dissent opines that "actual control" cannot mean "providing daily supervision, clothing, food, transportation, and the like" because that "would be the same thing as 'care,' rendering one statutory term or the other superfluous." Post at 169. In the dissent's view, " 'control' of a child entails the power and authority to make important decisions about the child's life," and "[a]s long as the parents remain actively involved in the child's life, there is little room for anyone else to exercise the control 'typically exercised by parents' because parents themselves already occupy that unique and special role." Id. at 172. We cannot agree with either conclusion.
• First, the fact that "actual care" and "actual control" are often exercised together does not make either term superfluous. When a nonparent takes daily responsibility for ensuring that a child is fed, clothed, and emotionally nurtured, that nonparent is taking "actual care" of the child. When a nonparent consistently makes the kinds of day-to-day decisions associated with raising a child-when she gets up and goes to bed, how much television she watches, whether she gets dessert, when she needs to go to the doctor-that nonparent is exercising "actual control" over the child. The dissent's narrow reading of "control" to encompass only the "important" decisions to be made about a child's life is supported by neither the statute nor the term's ordinary meaning. And it raises the question of which decisions are "important" enough to fall into this category.
• Further, the court of appeals and the dissent essentially focus their analysis on the parents' conduct in evaluating nonparent standing, but the statute by its plain terms focuses on the nonparent's role in the child's life. This makes sense because the relationship that develops over time between a child and a person who serves in a parent-like role-i.e., someone who has actual care, control, and possession of the child-is what justifies allowing that person to seek to preserve involvement in the child's life. We decline to hold that a parent must wholly cease exercising his or her own parental rights and responsibilities in order for a nonparent to exercise those same kinds of responsibilities and obtain standing under section 102.003(a)(9). Requiring this type of abdication would essentially amount to an imposition that parents relinquish their parental rights entirely in order for a nonparent to attain standing to seek a continued relationship with the child. Nothing in section 102.003(a)(9) supports imposing such a requirement.
• Finally, Mother and Father argue that a nonparent's exercise of actual care and control of a child is conditioned on the nonparent's "permanent power over a child," such that the provision of physical and psychological comfort is "more than transient in nature." They argue that a nonparent cannot satisfy section 102.003(a)(9) when, as in this case, the living arrangement was intended to be temporary. But, just as requiring legal or exclusive control over the child would improperly add language to the statute, so too would requiring intent to make the nonparent's exercise of care, control, and possession permanent. The parents do not dispute that they consented to the arrangement, and however long they anticipated it lasting, the fact remains that it had continued for over six months when Grandparents filed suit. See Jasek , 348 S.W.3d at 536 ("Presumably, a person would only be able to meet [the section 102.003(a)(9) ] requirements, absent violating some other law, with some type of parental or conservator consent, actual or constructive, such as where a parent leaves a child in the care of other people for more than six months."). The statute requires six months of actual care, control, and possession, not six months of care, control, and possession with the understanding that it is intended to be a permanent arrangement .
• In sum, a nonparent has "actual care, control, and possession of the child" under section 102.003(a)(9) if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child's daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.
• Applying the standards enumerated above, we hold that Grandparents exercised "actual care, control, and possession" of Heather for the six-month statutory time period. A litany of facts underlie this holding.
• First, as noted, it is undisputed that Heather's principal residence, from the time she was born until she was almost two, was Grandparents' home. During the six months preceding Grandparents' filing their petition, Heather spent approximately every other weekend (sometimes commencing on Thursday) at Father's, but otherwise resided with Grandparents. Grandparents were her primary caregivers, providing for her everyday physical and emotional needs. They paid for her food, clothes, and daycare. They managed and directed her day-to-day activities. They took her to urgent care when necessary for emergency treatment, made some of her doctor's appointments, and took her to the doctor for checkups even when Mother made the appointments. For a child Heather's age, it is difficult to imagine what more "care" and "control" they could have exercised. In short, Grandparents played a parent-like role in Heather's life on a daily basis for over six months before Grandparents filed their petition, from at least March 30 to October 6, 2014.
• That Heather's parents remained involved in her life and continued to make some medical decisions on her behalf does not alter or negate that conclusion. Nor does the evidence that the arrangement, while indefinite, was intended to be temporary. Mother and Father agreed to an extended arrangement in which Grandparents took primary responsibility for Heather's daily needs. Certainly Mother and Father could have revoked this arrangement at any time, but they chose not to.
• In sum, we hold that Grandparents have shown that, for the statutory time period, they (1) shared a principal residence with Heather, (2) provided for Heather's daily physical and psychological needs, and (3) exercised guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. Accordingly, Grandparents "had actual care, control, and possession" of Heather "for at least six months ending not more than 90 days preceding the date of the filing of the petition" and therefore had standing to file their petition.
• The visitation statute at issue in Troxel permitted "[a]ny person" to petition for visitation rights "at any time" and allowed the court to "order visitation rights for any person when visitation may serve the best interest of the child." Id. at 61, 120 S.Ct. 2054. Relying on this statute, the children's paternal grandparents petitioned the court for visitation rights after the children's father died. Id. at 60, 120 S.Ct. 2054. Although the mother wished to limit visitation to one non-overnight visit per month, the trial court ordered significantly more, finding it to be in the children's best interest. Id. at 61, 120 S.Ct. 2054. The Washington Supreme Court concluded the statute was unconstitutional, and the United States Supreme Court affirmed. Id. at 63, 120 S.Ct. 2054.
• The plurality in Troxel emphasized that the statute at issue was "breathtakingly broad," permitting "any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children" to court review. Id. at 67, 120 S.Ct. 2054. The plurality further faulted the statute for according no weight to a parent's decision that visitation would not be in the children's best interest. Id. The statute thus allowed a judge to "disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests." Id. Having rested its decision on "the sweeping breadth" of the statute at issue, the plurality nevertheless also noted that "the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best 'elaborated with care.' " Id. at 73, 120 S.Ct. 2054 ; see also id. at 100-01, 120 S.Ct. 2054 (Kennedy, J., dissenting) (noting that "a fit parent's right vis-à-vis a complete stranger is one thing; her right vis-à-vis another parent or a de facto parent may be another").
• In stark contrast to the Washington statute at issue in Troxel , section 102.003(a)(9) does not allow "any" nonparent to file a SAPCR; it allows only nonparents who have exercised "actual care, control, and possession" of a child for at least six months to do so. The nonparent standing threshold in Texas is thus much higher and narrower than the one rejected in Troxel . See In re Fountain , No. 01-11-00198-CV, 2011 WL 1755550, at *2 (Tex. App.-Houston [1st Dist.] May 2, 2011, orig. proceeding) (mem. op.) (noting that "the Legislature has provided a restricted and considerably more tailored standard for standing than 'any person' "). Nor does section 102.003 govern the merits of a SAPCR; again, the statute addresses only who may file a suit affecting the parent-child relationship, not what a petitioner must show to obtain the relief she seeks. The merits of a SAPCR petition are governed by other statutes that contain additional safeguards. See, e.g. , TEX. FAM. CODE § 153.131 (the appointment of the parent or parents as managing conservators is in the child's best interest unless the court finds that the appointment "would significantly impair the child's physical health or emotional development").
• Courts in other jurisdictions have also "declined to treat Troxel as a bar to recognizing de facto parenthood or other designations used to describe third parties who have assumed a parental role." Conover v. Conover , 450 Md. 51, 146 A.3d 433, 445-46 (2016) (collecting cases). These courts recognize the distinction between ordinary third parties and those "who have played an unusual and significant parent-like role in a child's life." C.E.W. v. D.E.W. , 845 A.2d 1146, 1149 (Me. 2004) ; see also Conover , 146 A.3d at 453 (reasoning that treating de facto parents as distinct from other third parties is not only consistent with Troxel , but also considers "the benefits a child gains when there is consistency in the child's close, nurturing relationships"); M.J.S. v. B.B. , 172 A.3d 651, 656 (Pa. Super. Ct. 2017) (holding that grandmother, who shared with her daughter the responsibility of raising her grandchild and who satisfied the child's "daily physical, emotional, and financial needs for his entire life," was much more than a "glorified baby-sitter" and could sue for custody as a person who stood in loco parentis to the child).