COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00036-CV

In the Interest of C.M.J., A Child §

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§

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From the 233rd District Court

of Tarrant County (233-494068-11)

December 21, 2012

Opinion by Justice Gabriel

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

It is further ordered that Appellants W.R. and L.R. shall pay all of the costs 

of this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS 

By_________________________________

 Justice Lee Gabriel
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00036-CV

IN THE INTEREST OF C.M.J., A 

CHILD

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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellants W.R. and L.R.2(Grandparents) appeal the trial court’s order 

appointing S.W. (Father) as the sole managing conservator of C.M.J. We affirm.

 

1See Tex. R. App. P. 47.4.

2We use aliases for the child and her relatives throughout this opinion. 

See Tex. R. App. P. 9.8(b)(2).
3

Background Facts

C.M.J. lived with K.C. (Mother) until December 28, 2010, when Mother was 

murdered. After Mother’s death, C.M.J. moved in with Grandparents. Father 

agreed in writing with Grandparents to name them as temporary managing 

conservators for a six-month period so that C.M.J. could finish the school year in 

Texas. The agreement was to end in July 2011 when C.M.J. would come to live 

with Father in North Carolina. On March 23, 2011, Grandparents filed an original 

petition seeking joint managing conservatorship with Father. Mother and Father 

were never married, and a child custody determination had not been made

during C.M.J.’s life.

Father filed a pro se letter that appears in the record as his answer. In his 

answer, Father stated, ―I feel that it is my responsibility to take care of my 

daughter. She should be here with me so I can support her emotionally, 

physically, and financially. . . . I want for [C.M.J.] to experience having a father in 

her life on a daily basis.‖ Then on August 24, 2011, Father filed a plea to the 

jurisdiction, arguing that Grandparents lacked standing because they ―failed to 

have [] actual care, control, and possession of [C.M.J.] for at least six months 

prior to initiating their action.‖ 

Grandparents filed a response to Father’s plea to the jurisdiction on 

September 12, 2011, and they also amended their original petition at that time, 

arguing that they had had ―actual care, control, and possession of [C.M.J.] for 
4

over six months at this point.‖ In their response, Grandparents argued that 

Father’s standing argument was now moot.

After a hearing, the trial court appointed Father as sole managing 

conservator. In its order, the trial court stated that Grandparents did not have 

standing but that the trial court had jurisdiction over the case. Grandparents filed 

a ―Motion to Vacate Order for Lack of Subject Matter Jurisdiction,‖ agreeing that 

they did not have standing to file their suit and arguing that the trial court’s orders 

were therefore void for lack of subject matter jurisdiction. Grandparents also filed 

a motion for new trial. The trial court denied both motions.

3

 Grandparents then 

filed this appeal.4

Discussion

In their sole issue, Grandparents argue that all of the trial court’s orders 

should be vacated because the trial court did not have subject matter jurisdiction 

to hear the dispute because Grandparents did not have standing to bring the suit. 

We review a trial court’s determination of standing de novo. See In re K.K.T., No. 

 

3After the denial of their motions, Grandparents filed a petition for writ of 

mandamus in this court. In their petition, Grandparents again argued that they 

did not have standing to file their suit and so the trial court did not have 

jurisdiction to hear the case. We denied their petition on February 27, 2012.

4

Father filed a reply brief in this court that contained a number of formal 

defects. See Tex. R. App. P. 9, 38. We notified Father to file an amended brief 

that complied with the rules of appellate procedure and this court’s local rules 

and that failure to file a compliant brief could result in striking the filed brief. 

Father did not file an amended brief. We therefore order Father’s brief stricken, 

and we proceed with this appeal as if Father had failed to file a brief. See Tex. 

R. App. P. 38.9(a).
5

07-11-00306-CV, 2012 WL 3553006, at *2 (Tex. App.—Amarillo Aug. 17, 2012, 

no pet.) (mem. op.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226 (Tex. 2004)). The pleadings are taken as true and construed in favor of 

the pleader. Id. 

Standing is considered ―a prerequisite to subject-matter jurisdiction, and 

subject-matter jurisdiction is essential to a court’s power to decide a case.‖ 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Standing 

cannot be attained by waiver and can be challenged at any time. See Tex. Ass’n 

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); Sarah v. 

Primarily Primates, Inc., 255 S.W.3d 132, 139 (Tex. App.—San Antonio 2008, 

pet. denied). In an original suit, standing is a threshold issue when the petitioner 

seeks managing conservatorship. See In re K.K.C., 292 S.W.3d 788, 790 (Tex. 

App.—Beaumont 2009, orig. proceeding) (citing In re M.P.B., 257 S.W.3d 804, 

808 (Tex. App.—Dallas 2008, no pet.)). The burden to prove standing is on the 

petitioner. See id. 

―The Texas Legislature has provided a comprehensive statutory framework 

for standing in the context of suits involving the parent-child relationship.‖ Id. at 

790–91; see Tex. Fam. Code Ann. § 102.003 (West Supp. 2012), §§ 102.0035, 

102.004 (West 2008), § 102.0045 (West Supp. 2012), § 102.006 (West 2008). In 

their original petition, Grandparents relied solely on Texas Family Code section 

102.003(a)(9), which provides standing for ―a person, other than a foster parent, 

who has had actual care, control, and possession of the child for at least six 
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months ending not more than 90 days preceding the date of the filing of the 

petition.‖ See id. § 102.003(a)(9). To compute the time under this section, ―the 

court may not require that the time be continuous and uninterrupted but shall 

consider the child’s principal residence during the relevant time preceding the 

date of commencement of the suit.‖ In re E.G.L., 378 S.W.3d 542, 547 (Tex. 

App.—Dallas 2012, no pet.) (citing Tex. Fam. Code Ann. § 102.003(b)).

Grandparents filed suit on March 23, 2011. C.M.J. lived with Mother until 

December 2010. Therefore, at the time the suit was filed, C.M.J. had only lived 

with Grandparents for three months. Almost six months after they originally filed 

suit, in response to Father’s plea to the jurisdiction, Grandparents filed an 

amended petition alleging that they had standing because they ―had actual 

possession of [C.M.J.] for over six months‖ at that point. However, this is 

insufficient to constitute standing under section 102.003(a)(9) because standing 

and subject matter jurisdiction are determined at the time the lawsuit is filed. See 

M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). While 

Grandparents had actual possession of C.M.J. for over six months at the time 

they amended their petition, they did not have actual possession of her for six 

months at the time the lawsuit was filed. Amending their original petition did not 

confer standing on Grandparents.5 See Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 

703 (Tex. App.—Fort Worth 2006, pet. denied) (―Because [plaintiff] lacked 

 

5Grandparents also do not have standing under any other provisions of the 

family code. See Tex. Fam. Code Ann. §§ 102.003–.004.
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standing at the time the action was filed, the suit must be dismissed even if 

[plaintiff] later acquired an interest sufficient to support standing.‖). 

However, if Father’s letter to the trial court filed in answer to Grandparent’s 

petition may be construed as a counter-petition, then the trial court had

jurisdiction to hear the case. We construe Father’s letter liberally and in his 

favor. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.

2000) (noting that a petition is sufficient if it gives fair and adequate notice of the 

facts to enable the opposing party to prepare a defense). In his letter, Father 

stated that he wanted to take care of his daughter, support her, and be in her life 

―on a daily basis.‖ Under this liberal construction, we conclude that Father’s 

letter was a counter-petition seeking managing conservatorship of C.M.J. 

Although Father is not a resident of Texas, the trial court made the finding, 

which is uncontested by Grandparents, that C.M.J.’s home state is Texas. See

Tex. Fam. Code Ann. § 152.201 (West 2008) (providing that a court of this state 

has jurisdiction to make an initial child-custody determination if ―this state is the 

home state of the child on the date of the commencement of the proceeding‖). 

As C.M.J.’s biological father, Father had standing to file suit. See id. 

§ 102.003(a)(1); see also id. § 102.011(b)(2) (allowing the trial court to exercise 

personal jurisdiction over a nonresident when he submits to this state’s 

jurisdiction ―by filing a responsive document having the effect of waiving any 

contest to personal jurisdiction‖). Therefore, because Father had standing to file 

suit, and because he filed a counter-petition in response to Grandparent’s 
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petition, the trial court had jurisdiction to hear this case. The trial court’s order 

appointing Father as C.M.J.’s sole managing conservator is not void for lack of 

subject matter jurisdiction. We overrule Grandparents’ sole issue.

Conclusion

Having overruled Grandparents’ sole issue, we affirm the trial court’s 

judgment.

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: December 21, 2012