Reversed and Remanded and Majority and Dissenting Opinions filed April 3, 

2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00006-CV

IN THE INTEREST OF K.D.H., A CHILD

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2012-06890

DISSENTING OPINION

The Legislature, under section 102.004(a),

1 allows certain nonparent 

relatives to file suit requesting managing conservatorship of a child upon 

“satisfactory proof to the court” that the requisites for standing thereunder have 

been met.2

 The majority, in essence, has construed this language to mean 

1 All section references are to the Texas Family Code.

2 The relevant portion of the statute states: 

In addition to the general standing to file suit . . . 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

 
“satisfactory proof to the appellate court” rather than “satisfactory proof to the 

[trial] court.” For this reason, I respectfully dissent.

I disagree with the majority’s articulation of the standard and scope of 

review required to review the judge’s evaluation of the proof in this context. 

Applying in this non-Department case3 what I believe to be the proper standard of 

review—legal sufficiency of the evidence—and scope of review—implying the 

findings necessary to support the court’s judgment that Grandmother did not 

present satisfactory proof to the court—I would affirm.

The majority is correct and understated in saying that the Legislature has 

drafted an “unusual” provision in section 102.004(a). The statute employs a 

familiar term, “standing,” but requires a different method of demonstrating 

standing than that already engrained in our jurisprudence. Standing usually 

requires a showing of particularized harm and typically is satisfied by pleading 

certain jurisdictional facts.4 See Bliss & Glennon Inc. v. Ashley, 01-12-01177-CV, 

2014 WL 47758, at *8 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no. pet. h.). 

In the Family Code section at issue, however, merely pleading jurisdictional facts

is not enough to demonstrate standing; the Legislature also requires an unusual 

quantum and quality of evidence to be adduced: “satisfactory proof to the court.” 

See Tex. Fam. Code § 102.004(a). 

“Satisfactory proof to the court” does not comport with any evidentiary 

the court 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 § 102.004(a)(1).

3 The majority incorrectly states that the Department “placed” the Child with 

Grandmother or “returned” the Child to Mother, as discussed infra.

4 As the Majority explains, “Ordinarily, standing is based on the existence of certain 

facts, not the existence of certain proof.” Maj. Op. at III.A.

2

 
standard in general use elsewhere in the Family Code or other Texas statutes.

5

 See, 

e.g., Tex. Fam. Code § 105.005 (“Except as otherwise provided by this title, the 

court’s findings shall be based on a preponderance of the evidence.”); id. 

§ 161.001 (requiring “clear and convincing evidence” to terminate parent-child 

relationships). In applying section 102.004(a), are we to equate “satisfactory 

proof” with a preponderance of the evidence or is “satisfactory proof” a type of 

finding “otherwise provided by” the Family Code, requiring its own evidentiary 

standard?

I. What is Satisfactory Proof to the Court?

Although I agree with the majority that the word “satisfactory,” i.e.,

adequate,

6 can be construed based on its ordinary meaning, I disagree that its 

ordinary meaning is “whether there is a genuine fact issue”—in other words, more 

than a scintilla. Maj. Op. at III.A.; see Kamat v. Prakash, No. 14-11-00661-CV, 

2014 WL 294497, at *6 (Tex. App.—Houston [14th Dist.] Jan. 28, 2014, no. pet. 

h.) (citing Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 

2009)) (noting appellate court must overrule legal sufficiency challenge to finding 

of fact when “more than a scintilla of competent evidence supports it”). In the 

context of a grandparent’s right to interfere with a parent-child relationship, merely 

“more than a scintilla” is neither adequate nor satisfactory. 

Sister courts have somewhat conflated the definition and the evidentiary 

standard required under section 102.004(a) by defining “satisfactory proof” as a 

“preponderance of the evidence.” See Mauldin v. Clements, No. 01-12-00016-CV, 

5 The term also is used in section 102.004(b). Research has revealed only one other 

Texas statute using the term, regarding certain reimbursement claims. See Tex. Estates Code

§ 1155.102.

6 See The American Heritage Dictionary 1092 (2d coll. ed. 1991). 

3

 
2014 WL 421292, at *14 (Tex. App.—Houston [1st Dist.] Feb. 4, 2014, no. pet. h.) 

(“In a family law case, when the petitioner is statutorily required to establish 

standing with ‘satisfactory proof,’ the evidentiary standard is preponderance of the 

evidence.”); Medrano v. Zapata, No. 03-12-00131-CV, 2013 WL 6921500, at *7 

(Tex. App.—Austin Dec. 31, 2013, no. pet. h.) (mem. op.) (“‘Satisfactory proof to 

the court’ . . . denotes proof by a preponderance of the evidence.”); In re Hogard, 

No. 10-13-00246-CV, 2013 WL 5603853, at *2 (Tex. App.—Waco Oct. 10, 2013, 

no pet.) (mem. op.) (same); In re C.A.H., No. 11-10-00040-CV, 2011 WL 947082, 

at *2 (Tex. App.—Eastland Mar. 3, 2011, no pet.) (mem. op.) (same); In re N.L.D., 

344 S.W.3d 33, 38 (Tex. App.—Texarkana 2011, no pet.) (requiring threshold 

finding based on a preponderance of the evidence); Von Behren v. Von Behren, 800 

S.W.2d 919, 921 (Tex. App.—San Antonio, 1990, writ denied) (applying 

preponderance of the evidence standard).

7

 Until the Legislature or the Texas 

Supreme Court clarifies whether section 102.004(a)(1) created a new evidentiary 

standard, I would follow our sister courts and require proof by a preponderance of 

the evidence of Grandmother’s standing. Further, I would imply all findings 

necessary to support the trial judge’s determination, as discussed below. After all, 

the Legislature stated the proof should be “satisfactory . . . to the court.” Tex. 

Fam. Code § 102.004(a) (emphasis added). 

II. Standards of Review

A. Jurisdictional Facts

I agree with the majority that, generally, whether a plaintiff has pleaded 

sufficient facts to establish standing is a threshold issue that we review de novo. 

7 “The term ‘preponderance of the evidence’ means the greater weight of the credible 

evidence admitted in [the] case.” Comm. on Pattern Jury Charges, State Bar of Tex., Texas 

Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC 1.3 (2010).

4

 
Maj. Op. at III.B.; see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

226 (Tex. 2004); see also Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.—

Houston [14th Dist.] 2000, no pet.). When standing has been conferred by statute,

however, the statute itself should serve as the proper framework for the standing 

analysis. In re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 

2008, no pet.). If a petitioner fails to establish proper standing, then the trial court 

must dismiss the suit. Compton v. Pfannenstiel, No. 01-13-00062-CV, 2014 WL 

576175, at *2 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014, no. pet. h.). 

Under section 102.004(a)(1), Grandmother was required to plead the 

following jurisdictional facts: this is an original suit requesting managing 

conservatorship, she is a grandparent, and she has proof (pleadings not being 

proof) of the requisite facts. The majority correctly notes that these jurisdictional 

facts as pleaded should be construed liberally in favor of the pleader. See 

Miranda, 133 S.W.3d at 226; see also N.L.D., 344 S.W.33 at 37-38 (applying 

Miranda standard to pleaded facts of consanguinity under 102.004(a) of three 

different petitioners and finding two did not satisfy the statute and, therefore, did 

not have standing). I disagree, however, that it would be “unreasonable” to 

construe 102.004(a)(1) so that the trial court is the fact-finder who makes 

credibility determinations thereunder, as the majority holds. Maj. Op. at III.A. I 

would hold the trial court’s finding that Grandmother’s proof was not 

“satisfactory” should be reviewed as we review other trial-level fact-findings.

B. Satisfactory Proof to the Court

The Legislature places an additional burden on the party seeking to 

demonstrate standing under section 102.004(a) beyond sufficient pleadings: to 

5
present “satisfactory proof to the court” of the requisites thereunder.

8 I believe

that, by doing so, the Legislature intended for the trial court to serve as a 

gatekeeper, limiting the access of nonparent relatives to file original suits to 

determine conservatorship. See Medrano, 2013 WL 6921500, at *6 (“[T]he 

relationship of grandparent to child is not alone considered sufficient to confer 

standing to bring a suit for conservatorship—to the contrary, chapter 102 embodies 

a strong public policy that grandparents should ‘not [be] entitled to disrupt the 

child’s family life and initiate suits for managing conservatorship except in limited 

circumstances.’” (citing Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex. 

App.—Houston [1st Dist.] 2007, no pet.))); see also infra III. (discussion regarding 

grandparental access). 

I would defer to the trial court’s assessment of whether the proof presented 

to it by Grandmother was satisfactory, considering the evidence in a light favorable 

to the trial court’s ruling and implying findings to support the judgment. See

Compton, 2014 WL 576175, at *2; see also N.L.D., 344 S.W.3d at 38 (citing 

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). The majority 

acknowledges that the Legislature intended the trial court to perform a gatekeeper 

function (Maj. Op. at III.A.), but then opens wide the gate and throws away the 

key.9

 Despite the unambiguous language used in the statute, the majority is 

uncomfortable with a construct that “casts the trial court as the factfinder” 

regarding satisfactory proof to the court because it makes appellate review 

8 Therefore, I disagree with the majority that, in this circumstance, merely pleading a 

proper basis for standing is sufficient.

9 The traditional standard of appellate review for decisions of the trial court as an 

evidentiary gatekeeper is an abuse of discretion. See, e.g., Enbridge Pipelines (E. Tex.) L.P. v. 

Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (applying abuse of discretion standard 

to trial court’s gatekeeping function to exclude irrelevant and unreliable expert evidence); see 

also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

6

 
awkward (see Maj. Op. at III.A.).10 Perhaps so, but we can no more rewrite the 

statute to make our job easier than we can to alter the outcome of an opinion.11

Here, the trial court held a hearing where evidence was presented. Because 

the trial court did not make findings of fact and conclusions of law, we must imply 

that it found Grandmother’s evidence of standing under section 102.004(a)(1) to be

unsatisfactory. See Mauldin, 2014 WL 421292, at *14; see also Compton, 2014 

WL 576175, at *2. I would review the evidence in a light favorable to the trial 

court’s findings, drawing reasonable inferences in its favor and presuming the

court resolved any evidentiary conflicts in a manner supporting its implied 

findings. Medrano, 2013 WL 6921500, at *8 (quoting City of Keller v. Wilson, 

168 S.W.3d 802, 819 (Tex. 2005)) (“[T]rial-level fact-finders ‘are the sole judges 

10 In fact, this court previously has deferred to the trial court as fact-finder in the standing 

analysis under section 102.004(a). See In re Vogel, 261 S.W.3d 917, 922 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.) (“Given these facts, we conclude that the trial court reasonably could 

have found that [the child’s] present circumstances . . . would significantly impair his physical 

health or emotional development.”).

11 The following courts have applied a scope of review deferential to the trial court’s factfinding to analyze standing under section 102.004(a): the First, Third, Fourth, Sixth, and 

Seventh Courts of Appeals. See, e.g., Compton, 2014 WL 576175, at *2 (“In our review, we 

consider the evidence in a light favorable to the trial court’s ruling.”); Medrano, 2013 WL 

6921500, at *8 (“We are likewise required to view the evidence in the light favorable to the 

district court’s findings, drawing reasonable inferences in their favor, and presuming that the 

court resolved any evidentiary conflicts in a manner supporting its findings.”); N.L.D., 412 

S.W.3d at 814 (applying abuse of discretion standard); In re S.M.D., 329 S.W.3d 8, 13 (Tex. 

App.—San Antonio 2010, pet. dism’d) (“We review the entire record to determine if the trial 

court’s implied findings are supported by any evidence.”); In re Burrows, No. 07-98-0178-CV, 

1999 WL 270176, at *2 (Tex. App.—Amarillo May 4, 1999, no pet.) (“[I]n a case such as this in 

which the trial court has made findings of fact and those findings are challenged on appeal, they 

are reviewed under the same standards as those used to review jury findings”). The Fifth Court 

of Appeals has also deferred to the trial court’s fact-finding in a similar context. See In re 

M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no pet.) (“When, as here, the trial court 

makes no separate findings of fact or conclusions of law, we must draw every reasonable 

inference supported by the record in favor of the trial court’s judgment.” (finding grandparental 

standing under Texas Family Code section 102.003(9) (conferring standing on “a person . . . 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”))).

7

 
of the credibility of the witnesses and the weight to give their testimony. They 

may choose to believe one witness and disbelieve another. Reviewing courts 

cannot impose their own opinions to the contrary.’”). I would apply this scope of 

review to determine whether the proof presented was such that a reasonable factfinder could conclude that Grandmother did not establish that the “order requested 

was necessary because the child’s present circumstances would significantly 

impair the child’s physical health or emotional development.” See Tex. Fam. Code 

§ 102.004(a)(1); see also Medrano, 2013 WL 6921500, at *9. 

III. Grandparental Access

In 2000, the United States Supreme Court’s decision in Troxel v. Granville, 

530 U.S. 57 (2000), precipitated a major shift in the way courts were to apply 

statutes allowing for grandparental access to a grandchild. Sampson & Tindall’s 

Texas Family Code Annotated 615 (Aug. 2013 ed.) (Sampson & Tindall). Troxel

reaffirmed a long line of cases holding that parents have a fundamental 

constitutional right to have and raise children without interference from the State 

except in extraordinary circumstances. Id. In 2004, the Attorney General of Texas 

issued an opinion concluding that Texas statutes in effect at the time granting 

grandparental access to grandchildren could be applied constitutionally, but the 

principles expressed in Troxel must be observed. Id. (citing Tex. Att’y Gen. Op. 

No. GA-0260 (2004)). The attorney general’s opinion summarized “[t]he message 

of Troxel” as follows: “[S]tate statutes that infringe upon a parent’s right to 

control the care and custody of his or her children are subject to strict scrutiny.” 

Tex. Att’y Gen. Op. No. GA-0260. 

Subsequently, the Legislature raised the bar for grandparental access to 

grandchildren, requiring evidence that the denial of access “would significantly 

impair the child’s physical health or emotional well-being.” Fam. Code § 153.432; 

8
see also Sampson & Tindall 615. The trial court must make a preliminary 

determination that the facts stated would, if true, demonstrate the truth of that 

allegation. Fam. Code § 153.432; see also Sampson & Tindall 615. Even so, the 

trial court retains discretion to order or refuse to order access and possession. Fam. 

Code § 153.433; see also Sampson & Tindall 615.

The Legislature similarly amended section 102.004(a)(1) to mirror the 

language used in section 153.432, requiring the grandparent to present 

“satisfactory proof to the court” that “the child’s present circumstances would 

significantly impair the child’s physical health or emotional development.”12 

Accordingly, the statute reflects a policy by the Legislature to follow the dictates 

of Troxel: that “there will normally be no reason for the State to inject itself into 

the private realm of the family to further question the ability of that parent to make 

the best decisions concerning the rearing of that parent’s children.” 530 U.S. at 

68-69. 

In that connection, the Legislature provided a mechanism for the trial court 

to be a gatekeeper to safeguard the fundamental constitutional right of parents to 

make decisions regarding the rearing of their own children. To protect this vital 

interest, the gate through which grandparents obtain standing to request managing 

conservatorship must be narrow. In light of these principles, the basis for standing 

at issue here is intended to restrict nonparent relatives from bringing a custody 

lawsuit except in “certain extreme circumstances”: it is not enough to show the 

child would be “better off” with the relative seeking custody. See Medrano, 2013 

WL 6921500, at *6. 

12 Prior to that amendment, the standard for grandparental standing was lower. Instead of 

being required to show “significant impairment” of the child’s “physical health or emotional 

development,” the grandparent had to show only “a serious question” concerning the child’s 

“physical health or welfare.” Conference Committee Report, Tex. H.B. 260, at 2, 79th Leg., R.S. 

(3d printing May 28, 2005).

9

 
Long before Troxel was decided, the Legislature had extensively amended 

the Family Code to permit grandparents and others to bring an original suit 

affecting the parent-child relationship under only limited, “specific factual 

circumstances.” Hearing on Tex. S.B. 455 Before the Senate Jurisprudence 

Comm., 69th Leg., R.S. (Mar. 5, 1985) (statement of Professor John S. Sampson 

on behalf of State Bar of Texas Family Law Section). That amendment created “a 

pretty severe test for grandparents . . . to seek custody” and was “balanced out” to 

“prevent . . . grandparents from bringing a suit for custody every time they disagree 

with the way their daughter or daughter-in-law is raising a child.” Id. The 

amendment was intended as a compromise “to strike a balance between situations 

where people legitimately ought to be brought in and heard before the court while 

at the same time not opening the courthouse doors so that family autonomy or 

family privacy can be invaded just at the will or whim of others.” Id. 

Accordingly, the trial court was given the discretion to decide whether 

grandparents have standing under the “specific factual circumstances” provided for 

in the amendment.13 

Grandmother’s claims are created by statute—namely, the Family Code—

and Grandmother’s standing to assert them is likewise governed by that Code’s 

“comprehensive statutory framework for standing in the context of suits involving 

the parent-child relationship.” See Jasek v. Tex. Dept. of Family & Protective 

Servs., 348 S.W.3d 523, 528 (Tex. App.—Austin 2011, no pet.) (quoting In re 

H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, pet. denied)). 

13 The 1985 amendment for the first time allowed grandparents or “any other person 

deemed by the court to have had substantial past contact with the child” to bring an original suit 

affecting the parent-child relationship upon “satisfactory proof to the court” that, as relevant 

here, “the child’s environment with the parent or parents, the managing conservator, or the 

custodian may endanger the child’s physical health or significantly impair the child’s emotional 

development.” See Senate Committee Report, Tex. S.B. 455, at 1, 69th Leg., R.S. (Mar. 13, 

1985).

10

 
Accordingly, Grandmother had the burden of establishing her standing within the 

prescribed parameters of that statutory language. See id.; see also Hunt v. Bass,

664 S.W.2d 323, 324 (Tex. 1984). Grandmother has relied on one of the “limited 

circumstances” in which grandparents may have standing under chapter 102, which 

are intended to restrict grandparental standing to “certain extreme circumstances.” 

See Medrano, 2013 WL 6921500, at *6; see also Von Behren v. Von Behren, 800 

S.W.2d 919, 921 (Tex. App.—San Antonio 1990, writ denied) (observing, with 

reference to an earlier version of this standing limitation, that it is “‘designed to 

strike a balance between those grandparents . . . who undertake a rescue mission 

and those who are just out to do a little officious intermeddling to correct the 

‘unsatisfactory’ childrearing methods of the younger generation.’” (quoting John J. 

Sampson, Texas Family Code & Commentary, 17 Tex. Tech. L. Rev. 1045, 1073 

(1986))).

IV. The Rest of the Story: The Proof before the Trial Court

The record contains Grandmother’s brief, Grandmother’s selections from the 

clerk’s record, and the reporter’s record from the hearing on the motion to dismiss 

where Grandmother was “called” as a witness. Both parents also appeared pro se 

at the hearing and spoke with the judge. See Medrano, 2013 WL 6921500, at *5 

n.9 (considering standing arguments made to trial court at hearing). It is unclear 

whether the parents were sworn as witnesses at the hearing. The trial court stated, 

“Everyone who’s going to testify in this matter, please raise your right hand.” This 

statement is followed in the record by the notation “(Witnesses sworn),” which 

indicates one or both parents were sworn in as witnesses along with appellant. The 

majority considers the statements by the pro se parties to be non-evidentiary, 

ignoring the realities of a busy trial court where not every witness sits in the 

11
witness chair.14 In considering the evidence in a light favorable to the trial court’s 

ruling and implying findings to support the judgment, I would presume that the 

trial court took these statements into account in its determination of standing.

In response to the testimony adduced at the hearing and recited in the 

majority opinion, Maj. Op. at I. and III.B., the trial court expressed concern that 

Grandmother had presented no evidence that the Child’s present circumstances

significantly impaired her health or emotional development.

15 See Medrano, 2013 

WL 6921500, at *7 (“‘Present circumstances’ . . . refer[s] to the state of affairs that 

existed as of the date [the relative nonparent] file[s] suit.”).16 The trial court noted 

that Grandmother’s original petition did not even allege standing under 

102.004(a)(1).17 It is undisputed that, when Grandmother filed suit, the Child was 

14 The trial judge has broad discretion to manage trial proceedings. Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). This authority is set forth, in part, in the Texas

Rules of Evidence: “The court shall exercise reasonable control over the mode and order of 

interrogating witnesses and presenting evidence . . . .” Tex. R. Evid. 611(a). A trial court must 

have leeway to manage its courtroom in the most expedient manner. See Francis, 46 S.W.3d at 

241. Moreover, in a bench trial, it is the trial judge who observes the appearance and demeanor 

of the witnesses, evaluates the personality of the contending claimants, and assesses the needs of 

the child in a suit affecting the parent-child relationship. In re J.G., 412 S.W.3d 83, 94 (Tex. 

App.—Fort Worth 2013, no pet.) (Dauphinot, J., dissenting). 

At the hearing, the trial court asked the Father to speak after Grandmother completed her 

testimony. It is unclear whether the court intended the Father’s comments at that point to be 

testimony or argument. The Father had no pending motion.

THE COURT: Anything else you want to say, sir?

[Father]: Yes, ma’am. A lot of what she said is inaccurate. I don’t want to go 

back and pick all the details . . . . Like I said, the baby’s well cared for. She’s not 

in any kind of danger. She’s well cared for and me and her mother are getting 

along swimmingly. There’s a lot of love in the house and everything is fine at 

this point in time.

15 The Father stated, “The current conditions that my child’s living in do not impair her 

development. She’s not in any kind of danger. She’s well taken care of. She’s fed. She’s cared 

for. She has all the affection and love she needs or wants.”

16 Grandmother filed suit February 2, 2012.

17 Grandmother initially alleged standing based on voluntary relinquishment by the 

12

 
living with her parents away from Grandmother’s residence. The trial court also 

noted that the Department had not filed a case against the parents. Grandmother’s 

counsel told the trial court the Department said that the Mother had “done her 

services” under the agreed plan.

When, as here, there is no explicit statement by the trial judge that she was 

taking notice of the court’s file, we presume that the trial court took judicial notice 

of “what has previously taken place in the case tried before it, and the parties are 

not required to prove facts that the trial court judicially knows.” See In re A.W.B., 

No. 14-11-00926-CV, 2012 WL 1048640, at *3 (Tex. App.—Houston [14th Dist.] 

Mar. 27, 2012, no pet.) (mem. op.); see also In re J.J.C, 302 S.W.3d 436, 446 

(Tex. App.—Houston [14th Dist.] 2009, pet. denied). The record is unclear as to 

the extent of the Department’s involvement with K.D.H. The Department was 

originally sued by Grandmother as a defendant, but we have none of its pleadings 

in our record. However, we do know from the “Report to the Court” filed by the 

Department and in the clerk’s record that the Department, as of February 28, 2012,

recommended “continued” placement of the child with the Mother. 

The Report further stated:

• The Department has not been named temporary managing conservator 

in this suit.

18

• Mother was merely “asked” to participate in various programs and 

agreed to do so; however, there is no order in the record.

parents and her “actual care, custody and possession” of the Child since October 5, 2011, which 

is less than the required six months. Grandmother added allegations under section 102.004(a)(1)

in a supplemental and amended petition filed June 13, 2012.

18 The report does not reflect that anyone other than the parents ever was named 

managing conservator of the Child; therefore, it is not accurate to say the Child was “returned” to 

the Mother or to imply that the Child was “placed” with anyone else, although the Department 

approved the Child’s living arrangement with the Mother at Grandmother’s residence and

referred to Grandmother and her husband as “voluntary caregivers.” 

13

 
• Mother was observed in family visitation by the Department on at 

least five occasions.

Moreover, according to the docket sheet in the record, the parties appeared 

before the trial court on five other occasions before the hearing on the motion to 

dismiss.19 The trial court was entitled to take into account that case history in 

assessing the credibility of the witnesses and making its determination as to 

standing. See In re A.W.B., 2012 WL 1048640, at *3.

V. Response to Majority’s Sua Sponte Arguments

The majority suggests that because Grandmother paid a jury fee, she had a 

constitutional right to a jury trial (and, by extension, a constitutional right to have a 

jury decide whether she presented satisfactory proof). Despite the fact that 

Grandmother did not make this argument, the majority also sidesteps whether 

Grandmother had standing to seek a jury trial in the first place. An appellate court 

may sua sponte determine it has no jurisdiction, because without jurisdiction, it 

cannot act; however, it may not sua sponte create jurisdiction for a party. See

Texaco, Inc. v. Shouse, 877 S.W.2d 8, 11 (Tex. App.—El Paso 1994, no writ) 

(acknowledging that court of appeals is required sua sponte to determine whether it 

has jurisdiction but may not create jurisdiction by consent or stipulation of the 

parties or waiver). A party without standing does not have a constitutional right to 

maintain a lawsuit, whether tried by a jury or the court. Also, since section 

102.004(a) clearly places the fact-finding duties with the trial court, the majority is 

implying the statute is unconstitutional. See Serv. Corp. Int’l v. Guerra, 348 

S.W.3d 221, 234 n.4 (Tex. 2011) (“[W]e only decide constitutional questions when 

19 Entries on docket sheets may not be used to contradict trial court orders and are not 

generally considered to be trial court orders or findings. Haut v. Green Cafe Mgmt., Inc., 376 

S.W.3d 171, 178-79 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Regardless, docket entries 

may be used by appellate courts to determine what transpired in the trial court. Id.

14

 
we cannot resolve issues on other grounds.”).

The majority also argues on Grandmother’s behalf that the merits of 

Grandmother’s case are implicated in the Mother’s standing challenge (to support 

her request for appointment as managing conservator, Grandmother pleads, among 

other complaints, that the Mother’s access to the Child would endanger the Child’s 

physical health or emotional welfare). The majority concludes that the trial court 

cannot rule on the issue of satisfactory proof to the court, therefore, unless the 

evidence is conclusive, citing Miranda. See 133 S.W.3d at 228. If there is a fact 

question, the majority says, the issue must go to a jury. See Maj. Op. at III.A. 

However, as set forth above, when standing has been conferred by statute, it is the 

statute that creates the proper framework for a standing analysis. In re Smith, 260 

S.W.3d at 572. Standing under section 102.004 arises from the “comprehensive 

statutory framework for standing in the context of suits involving the parent-child 

relationship.” Medrano, 2013 WL 6921500, at *5. Moreover, standing with 

regard to suits affecting the parent child relationship that implicate the 

“[fundamental] interest of parents in the care, custody, and control of their 

children” must be analyzed in accordance with Troxel. See 530 U.S. at 65-66; see 

also In re Russell, 321 S.W.3d 846, 859 (Tex. App.—Fort Worth 2010, no pet.) 

(“We construe the standing statutes in a manner consistent with the constitutional 

principles stated in Troxel.”).

I disagree with the majority that the trial judge is bound by Miranda to 

abstain when the statute explicitly requires the trial court to act.

VI. Conclusion

In implying the findings necessary to support the trial court’s determination, 

I would conclude that a reasonable fact-finder could have found that Grandmother

did not present by a preponderance of the evidence “proof satisfactory to the court” 

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that the Child’s present circumstances as of February 2, 2012 would significantly 

impair the Child’s physical health or emotional development.20 See Tex. Fam. 

Code § 102.004(a)(1). As the trial court noted at the hearing, Grandmother 

presented evidence only of the child’s past circumstances, and the trial court was 

entitled to consider the Department’s recommendation that the Mother maintain 

custody, and indeed, as the trial court noted, the Department’s decision not to 

pursue a case against the parents.

/s/ Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Frost, C.J., 

majority).

20 Even applying the standard articulated by the majority, I would find Grandmother 

failed to create an issue of material fact of present circumstances significantly impairing the 

Child’s health. Present means as of the date of filing. Medrano, 2013 WL 6921500, at *7. 

Moreover, Grandmother was required to present evidence of “specific, identifiable behavior or 

conduct of the parent[s],” as shown by “specific acts or omissions,” and evidence that such acts 

or omissions “will probably cause that harm.” See S.M.D., 329 S.W.3d at 16. Grandmother 

presented no evidence of acts or omissions by Mother or of present circumstances that would 

harm the Child. In fact, Grandmother testified that the Child had not been hurt during the 

Mother and Father’s interactions with the Child in the Grandmother’s home.

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