## In the Court of Appeals Second Appellate District of Texas at Fort Wort h

___________________________ No. 02

- 21

- 00409

- CV

___________________________

On A ppeal from th e 393rd District Court Denton County, Texas Trial Court No. 17

- 2228

- 393
Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Wallach 

### I N RE 

### S.W. , R ELA TOR2 MEMORANDUM OPINION
In this mandamus action, relator Mothe r complains of th e trial court ’ s d enial of
her motion to dismiss the intervention petition filed by real party in interest paternal
G randmother and its te mporary orders granting Grandmother possessory conservatorship and poss ession and access i n a suit af fectin g the parent

- chil d
relations hip (SAPCR) regarding Mother ’ s dau g hter B.T

. 1 Mother argues that the trial
court abused i ts discretion by denying he r motion because (1) Grandmother did not
have standing to in terven e a nd (2) Grandmother did not overcome Moth er ’ s constitutiona l right to the fit

- parent presumption

. We conditionally grant Mother ’ s mandamus petition because we agree that Grandmother did not establish standing t o intervene

. 2 Background
Factual and Proce dur a l Bac kground
Mother and Fat her were tee na gers when B .T. wa s bor n in 2016

. In August of 2017, the trial court entered a final decree that ap pointed Mother and Father as B.T. ’ s joint managing con ser vators , wit h Father having the e xc lusi ve ri ght to det ermine
B.T. ’ s primar y re sidence. For approximately the first two years of her life, B.T. lived

1 W e refer to the child using her initials and to ot her fam ily m ember s by their
r ela tionship to th e c hi l d

. Se e T e x . Fam. Code Ann. § 109.0 02 (d) ; Tex

. R. App. P. 9.8(b )(2)

.

2 Having conditionally granted Moth er ’ s petition on the issue of standing , we need not consider her constitutional argument. Se e Tex. R . App. P . 47.1.3 wit h Mother and Father in Grandmother ’ s ho me . During this time, Father spent eight
months in jail and started a n additiona l seven

- y ear prison senten ce in January 20 19

. Mo ther and B.T. continued to live with Grandmother un til August 2019 when they
moved ou t of Grandmother ’ s ho me and into a separate residence.
After Father sta rted his seven

- year prison sentence , Mot her filed a modification petition seeki ng so le m ana ging c o nservatorship of B.T. on June 17 , 2021.
Grandmother then filed a petition in intervention that sought appointm ent as joi nt managing conservator wit h the right to determi ne B.T. ’ s primary residence or, al terna tively, pos ses sion of and ac cess to B.T. , and t e mporary orders for the same. In seeking conserva torship, Grandmother al leged that t he “ appointment of the parents of the child as managing conservators woul d n ot be in the best inte rest o f the ch ild
because the p ar e nts ’ pre sent circumstances would signifi c a ntly impair the child ’ s physical health or emotional developmen t. ” 3 In seeking possession and access, Grandmother alleged that “ the d en ial of pos ses sion o f or access to the child by [G randmother ] woul d s ignifican tly impa ir th e child ’ s physi cal health or e motional
well

- being

. ” 4 In support of her petition, Grandmother attached an affidavit alleging that:

• M o ther was exposing B.T. to unsafe condition s;

3 See Tex. F am. Co de Ann. § 10 2.004.

4 See i d. § 153

. 432.4 • Mother and B.T. liv ed with Grand mother from 2017 u ntil the fall of 2019;

• Grandmother ha d car ed extensively f o r B.T. for most of B.T. ’ s life , mainly while Mother was at work and often overnight ;

• Grandmother had help ed pay for and transport B.T. to a nd from da yc are;

• Grandmother had provided B.T. with health insurance and bou ght B.T. cloth ing and other necessitie s ;

• In September 2019, B.T. was required to get sti tches while in Mother ’ s care afte r being hit wit h a car door a b ove h er eye;

• In June 2020, B.T. ingested mother ’ s birth control pills while in M oth er ’ s care;

• In May 2 020, B.T . received th ird

- degree burns on he r chest while in Mother ’ s care;

• In Janu ary 2021, B.T. attempted to c ook food i n the mi crowave , which resulted in a “ big smoke out in the kitchen from it burning ” ;

• In January 2021, Mother left B.T. in a cousin ’ s care who transported B.T. in the front seat o f a car without a car seat ;

• At a June 2021 vi sit with Gr andmot her, B.T. “ was hungry , scratching her hair repeatedly as it had not been washed, ” and had just had an overnight stay at the ho use of Mother ’ s friend ;

• Mother had all owed B.T. to sleep in a bed wi t h m at ernal gra ndmother and
m at er nal grandmot her ’ s boy friend ; and

• Grandmother and B.T. have a “ close emotional bond ” and B.T. reli es on Grandmother to be a consisten t caretaker and comforter, both “ financially and psychologically

. ” Grandmot her fur th er atte s ted that B.T. ’ s “ well

- bein g is in imminent and material danger and this court should not wait for something else to hap pen to [her] granddaughter or it m ay be the last time. ”5 In re sponse to Grandmother ’ s intervention , Mother file d a motio n to di smiss
Gran d mo ther ’ s int erve ntion for lack of standing , which the trial court initially deni ed

on July 7, 2021. On July 9, 2021, Mother filed an amended motion to dismiss , again arguing that Grandmot her lacked standing to interv ene. A t the July 1 2 , 202 1 temporary

- ord e rs hearing , Mother again raised her standing comp laint , and the
trial court heard te stimony on the i ssue . Temporary

- Orders Hearing on July 12, 2021
Mother ’ s Testimony
Mother explained t hat she a nd B.T. lived with Grandmother from B.T. ’ s b irth

un til Augus t 2019, when she and B.T. moved into their own apartment
. Mother stated
tha t B.T. ha d her ow n bed room and that B. T. ha d lived with her continuously since they moved out of Gran dmother ’ s home

. Ac co rdi ng to M other, B.T. ha d no t lived
with Grandmother since A u gust 2019 and does not have her own bed room when she stays at Gra ndmother ’ s overnight

. Mother testifie d that f or a time , B.T. was in dayca re while M other worked ; Mother and Gran dmother split the cost of the daycare

. But a fter daycare beca me too

ex pensive, the d ecis ion was made in S eptember 2019 for Grandmother to watch B.T.
at Grandmoth er ’ s home

. A t first, this required Grandmot her to watch B.T. during the
d ay, five days p er week. However, after Mother started a n e w j ob in March 2021 that

r equired her to w o rk night shifts , B.T. would stay overnight at Grandmother ’ s house6 approximately three nights per week

. Moth er did not drop B .T. of f at Grandmother ’ s house with the intent to leave her there permane n tly.
Mother tes tified that she m ade the decision in April or May 2021 for her family

to watch B.T. rather than Grandmother due to a st rained re lations hip between
Mother and Grandmother. Grandmother often cussed at Mot her in text exchange s b e tween the two women , which mad e it difficult for Mother to leave B.T. in her care:

“ It just

- - it wasn ’ t in the best inte rest of [B.T. ]

. . . . ” But Mother explai ned that she
had not cut off contact between B.T. and Grand mothe r

— in the mon th b efore the
tempo rary

- orders heari ng, B.T. and Grandm other had spoken on the phone betw e en four and seven times and had visited at least on ce in per son. Mother stat ed that she
had “ never had an issue ” with B.T. spe nding t ime wi th Grandmother and that she had

“ let [B.T.] see [ Grandmother] even though all this stuff has been going on , ” but she
also noted th at this was not somethin g she was requir ed to do.
M other confirmed that B.T. had received stitches two or three ye ars ago . She explained th at B.T. had tried to run into a parking lot , and , when Mother grabbed her,

“ [B.T.] swung her head back a nd hit her

- - undernea th her eyebrow on t he door. ” As

to Gran dmother ’ s allegation that B.T. had ingest ed birth control pill s, M othe r testified
th at B.T. had in fa ct accessed the pills from a low cabinet in Mother ’ s ap artment , but
Mother did not know if B

. T. had actua lly ing e sted them. Mother called her sister

— an ICU nurs e

— and poison control , w h o t old Mothe r to mo ni tor B.T. f rom hom e.7 However , Mother took B.T. to the hospital “ just to get her che cked out and she was
fine. ”
M other als o state d that, more tha n a yea r ago, B.T. had been burned after she
accid entally spille d soup on her self. Mother treate d the burn at home wit h ointment , and B.T. was not diagnosed with third

- degree burns. Concerning Grandmoth er ’ s alle gation about the “ big smo ke ou t ” in the kitch e n, Mother explained that she had
been cooking popcorn in th e mi crow av e and B.T. “ must have pres sed more tim e on the microwa ve , ” causing the popcorn to burn

. As to leaving B.T. with friend s , Mother st ated th at this occurred o n one occasion when her ow n mot h er was unavai la ble to w at ch B.T. Moth er confirmed that her cousin had transported B.T. in a car without a car seat but disputed that B.T. had ever shown up to a visit with Grandmo ther with dirty hair. Mother a lso testified th at,

w hen she learned it w as a p ossibility that B.T. might be sleeping in th e same bed a s maternal grandmother and maternal grandmother ’ s boyfriend , she asked th at the
bo yf riend leave the room.
M other exp lained that other than B.T. ex pressing a stron g desi re not to atten d

tw o vi si ts wit h Grandmother, B.T

. ’ s recent be havior h ad been exactly as it had always
been

— no grow th regress ion, bedwetting, or despondency

. Maternal Grandmother ’ s Testi mony
Mater nal g randmot her testifi ed that B.T. ’ s demeano r and behavi or h ad n ot changed or been odd i n the thr ee or four mo nths before the hearing. For the last two8 or three months, maternal grandmother had been watching B.T. in her home whi le
Mother was at work.
Gran dmother ’ s Testimony
G randmother a cknowledged that she had not been present for any of th e i ncidents alleged in her affidavit. She stated that Mo ther and B

. T. lived in her home
from October 2016 unti l Augus t 24, 201 9 , when they moved out: “ I hel ped her move out of my house. I literally picked up things. ” Aft er Mother and B.T . moved out,
Mother would drop B.T. off at Grandmother ’ s hous e before work and pick B.T. up
when her shift ended.
When asked h ow often she took care of B.T. from 2016 unti l May 2021, Grandmother respon ded : “ Very c onsistently , every week. The re has n ot been a time
that I have been away from B.T. ph ysically more than two days

. ” During that time , she had o ften care d for B .T. four to five days a week. When Mother started a new job
in March 2021, there were days during which she saw B.T. for only three or fou r hours because Mother worked the night shift

. Grandmother al so watched B.T. at other ti mes, in cluding when Mother was at school, on vacation, or “ needed a break

. ”
Grandmother voiced concern s that Mother was in capa ble of caring for B.T.
without Grandmother ’ s help. She worried t hat Mo ther w as leaving B.T. wi th variou s diffe rent people during the day in place of Grandmother

. At one person ’ s house , B.T.
caug ht head lice

. When asked if she had concerns about B.T. ’ s emotional9 d evelopment if B.T. did not have regu lar access to Grandm o ther, Gra ndmot her

res ponded: Yes, because I pro vid e her with stability. I provide her with patience. I have witnessed [Mother] continuous ly yelling at her

. [B.T.] fights her. [B.T.] has thrown a rock at the back of her head. [Mother ] ha s called m e on Face T ime cr ying. She said [ B.T.] threw her phone i n her face and busted her lip. They ’ re always fighting. I have been the one to settle things and get [B.T.] to mind and to listen and to comply wit h her. At a recent visit with Grandmother , B.T. “ was he r norma l self ” a nd “ was happy ” and

t rie d to convince Grandmother not to return her to Mother at the conclusion of the
visit. According to Grandmother, B.T. had at one t im e called her “ mom ” before
Father had instructed B .T. to call her “ nana. ”
Trial Court ’ s Temp o r ary O rde rs A t the conclusion of the temporary

- o rders hearing, t he trial court named
Mother temporary sol e managing conser vator and Father and Grandmo th er temporary possessory conservator s and als o granted Grandmother visitat ion with B.T.
In ma king i ts or a l ruling , the court stated : THE COURT: Okay. Num ber one, I find th at the mother is a fit
m other. I’m sure t here’s incidents with th e child. We all have incidents. My mother burnt my hand with an iron. It was an accident. Accide nts happen.

. . . THE COURT: But I find the

- - for what it ’ s worth, I find a

- - the young mother like I said, I found her fit. In fact, in m any ways she ’ s made some

- - not the greatest life choic es , but she ’ s

- - as many of us10 didn ’ t do

- - but she ’ s working to r ecover from them, a nd I find that commendable. So , what I ’ m t rying to do is make it clear I fi nd she ’ s a fit pa rent. The court reasoned that granting access to Grandmother w as appropriate because
B.T. a nd Grandm other w ere af fectionate and bo nded with each other and because
B .T. “ [a]t one point maybe was e ven confusing [ Grandmother] with t he mother. ” Quoti ng the concurrence in In re C.J.C. , 603 S.W.3d 804 (Tex. 2020), and the St e vens dissent in Troxel v. Granville , 530 U .S. 57, 99, 120 S. Ct. 2054, 2078 (2000) , the trial

cour t added that ceasing contact between a child and a grandparent whom the ch ild

v

iews as a parent or attachment figure “ may have a dramatic, and even traumatic , effect ” or create “ signif icant psy chologi cal harm ” o n a child ’ s well

- being. In its written tempor a ry orders signed on September 3 0 , 2021 , the trial court found that (1) it had jurisdiction over the cas e and parties; (2) M othe r was a f it parent
entitled to the fit

- parent pr esumpt ion; an d (3) Grandmother ha d s tanding under
section 102.003(a)(9 ) of the f a mil y code

. Mother filed this petition for writ of manda mus along with a motion for
emergency tem porary relief to st ay the trial. In her mandamus petition , Mother claims

t he tria l co urt abused its disc retion by (1) denying Mother ’ s motion to dismiss
Grandm o ther ’ s conservatorship claim, (2) deny ing Mother ’ s moti on to dismiss
Grandmother ’ s claim for possession and access, and (3) granting Grandmother
temporary access to B.T. Grandmother respon ded , without legal support or citation to the record, that she did , in fact, esta blish standin g under sect ion 1 02.003(a)(9) and11 that Mother is not entitled to mandamus rel ief because she unjustifiably delayed the
fili ng of her man dam us petition. Availability of Reme dy We grant the extraordinary relief of mandamus only whe n the trial cou rt has clearly ab used its discretion and the relator lacks an adequate appell ate remedy. In re Team Rocket, L.P

. , 256 S.W.3 d 257, 25 9 (Tex. 2008) (or ig. proceedin g) ; see In re State , 355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding). A tria l court has no discretion in
det ermining what the law is or in applying the law to the parti cular facts. In re
Pr udential In s. Co. of Am. , 14 8 S.W. 3d 124, 135 (Te x. 2004) (orig. proce eding).
M anda mus relief is permissible when a trial court erroneously de n i es a motion

to strike a petitio n in in tervention. In re Clay , No. 02

- 18

- 00404

- CV, 2019 WL 5 45722 , at *3 (Tex. App

. — Fort Worth F e b. 12 , 20 19 , orig

. procee ding [mand. denied ]) (m em. op.)

. Fu rther, because “ an order d e nying a motion to dismiss for lack of st a nding in a [SAPCR] is not appealable, ” the re is no adequate remedy at law

. In re McDaniel , 408 S.W.3d 389, 396 (Tex. App.

— Houston [1st Di st.] 2011 , orig. proceeding) (citing
In re Roxsane R. , 249 S.W.3d 764, 775 (T ex. App.

— Fort Worth 2008, or ig

. proceedin g ))

. Thus, man damus relief is appropriate when a trial court clearly
mis ap p lie s the law re garding standing in ruling on a petition in inte rvention

. Clay , 2019 WL 545722 at * 3.12 Standing
The issue of s tanding is a question of law that we review de novo. I n re H.S

. , 550 S.W.3d 151 , 155 (T e x. 2018 ). A party ’ s lack of stan ding deprives the trial court of subject

- matter j urisdiction and re nders any court action void. In re Russell , 3 21 S.W.3d 846, 856 (Tex. App.

— Fort Worth 2010, orig. proceeding [mand. denied] )

. If a
p etitioner lacks standing to assert a claim , the trial court must dismiss that claim for lack of jurisdict ion. Heckman v. W illiamso n C nty. , 369 S.W .3d 137, 153 (Tex. 2 012 ) ; In re H.L. , 613 S.W.3d 722, 724 (Tex. App.

— Fort Worth 2020, no pet.)

. When s t anding has been c onferred by statute, the statute itself serves as the proper framework for a standing a n alysis. See Hunt v. Bass , 664 S. W.2d 323, 324 (T ex. 1984). A party seek ing relief in a SAPCR must allege and establish standing within the
parameters o f the langu age us ed in the relevant famil y code provision s . H.L. , 613 S.W.3d at 724

. An analysis of whether a party has standing begins w ith the p etition er ’ s live pleading s , an d we construe the pleadings in petitioner ’ s favor

. See Jasek v. Tex. D ep ’ t of
F

am . & Protective Servs. , 3 48 S.W.3d 523, 527 (Tex. App.

— Austin 2011, no pet.). However, w e must also consid er evidence the parties present ed belo w that is relevant to the jurisd ictional issues, includi ng any evidence that a party has presented t o negate

t h e exis tence of facts alleg ed in the petitioner ’ s pleading. H.S. , 550 S.W.3d at 155; see Tex. Dep ’ t of Parks & Wi ldlife v. Mir and a , 133 S.W .3d 217 , 227 (Te x. 2004)

. If the facts13 relevant to jurisdictio n are undisputed, the jurisdictional determination is a matter o f
law. See Miranda, 133 S.W.3d at 228.
No Stan ding Under § 102.003(a)(9)
The trial court found that Grandmother had standing und er family code

s ection 10 2.003(a)(9 ). Legal Requ irements for Standing Under § 102.003(a)(9)
S ection 102.0 03(a)(9) con f ers standing on a no n parent to file an original
SAPCR 5 who “has had actual care, control, and possession of the child fo r at leas t six

m onths ending not more t han 90 days preceding the date of the filing of the petition.”
Tex . Fam. Code Ann. § 102.003(a)( 9 ). S ection 102.003( b) provid es that “[i]n computing the time necessary for standing under [subsection (a)(9) ] , the court

. . . sh all con sider the child’s princ ip al residence during the relevant time precedin g the
date of commencement of the suit.” Id

. § 1 0 2.003(b).
I n terpre ting these sections jointly , the Texas Supreme Court has held t hat

n onparents cannot establish standi ng under section 102.003 (a)(9) if they d id not share a principal residence with the chi ld for the statutor il y
- required time perio d “ rega r dless
of how extensively they participate [d] in caring for her.” H.S. , 550 S.W.3d at 156

. Th e

c ourt specif ically exclud ed “ babys i t ters, daycare pro viders , fri ends, and relatives w ho

5 T exas courts have held that, if a person has sta ndi ng under 102.003 (a)(9), then the y “generally may instead file a petition in intervention ” a s Grandmother did here. In re J.A.T ., 502 S.W.3d 834, 837 (Tex. App

. — Houston [14th. Dist] 2016, no pet .).14 assist with childcare responsibilities but do not s hare a principal resid e nce w ith the
chi ld ” from the categor y of persons upon whom such standing can be conferred. Id

.
at 156 n. 7.
Courts are t o determ ine a c hi ld ’ s princi pal resi de nce by l ooking at the following factors: (1) wh ether t he child has a fixed place of abode wit hin t he possession of the party, ( 2) occupied or intended to be occupied consistently over a substantial period
of time , a nd (3) whic h is pe rm anent rather than tem p orary. In re Kelso , 266 S.W.3d 586 , 590 (Tex. App.

— Fort Worth 200 8, no pet.)

. An alysis
Accordin g l y, to meet her b urden to allege facts demonst rating stan ding under

se ction 102.003 (a)(9), Grandmother had to show tha t her hom e was B .T. ’ s pri ncipal
residen ce in wh ich they lived together for at least six m onths ending not more than
90 day s before Grandm o ther fil ed her ori ginal petition in intervention on July 6, 2021

. See Tex. Fam. Code An n. § 102.003(a)(9)

. It i s undi s puted th at Gran dmother did not meet th is burde n. Though B.T. an d
Mother resided with Grandmother f or the first two years of B.T. ’ s life , t he pl eadings
and evidence established conclusivel y that they moved out of Grandmother ’ s home
and i nto their own a part ment in A ugust 2 019. Gra ndmother hersel f confir m ed this i n both her affidavit and testimo ny . Rather than alle ging that B

. T . resided with h e r after August 2019, Grandmother instead alleg e d that she had substantial , consist ent possession of B.T.

— often15 watch ing the c hild fi ve days per week

— due to being t he primary childcare provider
while Mother w orked. Mother woul d drop B.T. o ff at Grandmother ’ s home before
work and retrieve her after Mot her ’ s shift ended

— a daily routine in which Mother
never i nte nded to lea ve B. T. a t Grand mother ’ s house permanen tly. In other wor ds,
Grandmother assisted extensiv ely with childca re resp onsibiliti es , but B.T. neve r reside d with Grandmother after August 2019

. This lands squarely within th e categories set forth by the supreme cour t to illu strat e when a person does not hav e standing under section 102.003 (a)(9)

. See H.S. , 550 S.W.3d at 156 n.7.
Bec a use B.T. and Grandmo t her did not share a fixed, permanent abode togethe r for at least six m onths ending no t more than 90 days before Jul y 6, 2021 , Grand mo ther doe s not have st anding under section 102.003(a)(9). See In re Kelso , 266 S.W.3d at 5 90. The tria l court abused its di s cretion in finding otherwise.
No St anding Under § 102.004
Mo ther next argues t ha t the trial court abused its discr etion by not di s missing
Gr andmother ’ s c laim for managing conservatorship of B.T. for lack of standing under family code section 102.004

. We a gr ee. Legal Requirements for Stan ding Under § 102.004
Section 102.004 con fers st anding on a grandparent to request managing

conser vatorship “ if there is sat isfa ctory proof to the court that . . . the order requested is necessary beca use the child ’ s prese n t circumstances would significantl y impair the
child ’ s physical health or emotional development. ” Tex. Fam. Code An n. § 102. 004(a).16 Analysi s To show si gnificant i mpairment, Grandmother alleged in her affidavit t hat B.T.

was in “ imm inent and material dang e r ” while in Mother ’ s care and cited seven
suppo rti ng incidents : B. T. ’ s getting st i t ches after hitting her eye on a car doo r; B.T. ’ s ingesti ng Mother ’ s b irth

- control pi lls; B.T. ’ s obtaining a third

- degree burn on her
chest ; there having be en a “ big smoke

- o u t ” from burned foo d; B.T. ’ s riding in a car with Mother ’ s cousin without a car seat ; B.T. ’ s being dirty when she arrived t o visit
with Gran dmother ; and B .T. ’ s sleeping i n a bed with m aternal grandmother and

m at ernal grand mother ’ s boy frien d

. Additionally, G randmother testified that she was
concerned with Mot he r leaving B.T. in the care of several of Mother ’ s friends, whi ch
led to B.T

. catching head lice

. Ho wever, Gran dmother admitted that she was not present at any of th e seven incidents and did not dispute Mother ’ s testi mony explaining each incident. In fact,
Mother ’ s explanation for each inc ident led the trial court to chara cterize them as

“ accidents

. ” T he trial co urt then repeatedly asserted that Mother was a fi t paren t , le ft
B.T. in M other ’ s care, named M other as B.T. ’ s temporary sole managin g conservator , and fo und that Grandmother had standing only under s ection 102.003(a )(9), w hich confers standing w ithout a need to show significant impairment

. Vi ewing the entirety of the ev idence , and becau se we have a lready held that
Grandmother does no t have standing under 102.00 3 (a)(9), we hold th at the trial court
ab used it s discret ion by not dismissing Gr andmot her ’ s conservatorship claim.17 No Standing Unde r § 15 3.432
Fin ally, Mo the r arg ues tha t Grandmot her lack ed s tanding under family code
section 15 3.432 , and thus, the trial court abused its discretion by not di smi ssing
Gr andmother ’s clai m for possession of and access to B.T. , by naming Grandmother
temporary possessory conservator , and by gra nting Grandmo ther t emp o rary access to B.T. Again, w e agr ee. Leg al Requirements for Standing Under § 153.432
Section 153.432 o f the fa mily code confer s st anding on a grandpa rent to petition for p ossession of a nd access to a grandchild , but only if the grandparent
attach es an af f idavit “ th at contains , along with supporting facts, the a llegation that
denial of possession of o r access to th e child b y the p etitioner would sign i fi cantly
i mpair the child ’ s physical health or emotional well

- being. ” Tex. Fam. Code Ann. §
15 3.432(c ) ; see H.L. , 613 S.W.3d at 724

. “ A trial court abus es its discretion wh en it
grants access t o a grandparent who has no t met thi s stand ard

. . . . ” In re Derz apf , 219 S.W.3d 327, 33 3 (T ex. 2007 ) ( orig. proceeding )

. I n H.L. , we held that grandpa re nts did not have s tanding under section
153.432 to seek posses sion of and access to the ir grandchild because the facts all eged
in their su pportin g affidavit w ere ins uff icient as a matter of law to show that denial of
posses sion of or access to the child would have signi fic a ntly impaired the child ’ s physical health or emotional wel l

- being

. H.L

. , 613 S.W.3d at 727. The grandmother

ave rred in h er affi davit that she had a cl ose relationship with t he child and that the18 child had expressed frustration and sadness a t having lost c o nta ct with her grand parents
. Id

. at 726. Th e grandmother was co ncerned that the child would be sig nificantly i m paire d by her lo ss of contact with the grandparents becaus e such
would teach the child t hat “ people can be abandoned ” and lead the child to beli e ve that her gra ndpar ents did not love her. Id

. We noted th at, at best, the grandparents ’ allegations re flected “ frustra tion,

a nger, or perhaps a ‘ lin gering sadness ’ ” on the part of the child, but were devoid of any facts pertai nin g either directly or indi r e ctly to [the chil d ’ s] cur rent physical or emotional well

- bei ng or to show that [the child] had suffered any significa nt impa irment yet. Instead, [ t he grandmother] made a conclusory assertion about the results of denial of possession or access and made un s u pported predictio ns a bout what the lack of possession o r acc ess would teach the child in the fu ture. Id . a t 727 ( ci tations omitted) ; see In re Sc heller , 325 S.W.3d 6 40, 643

– 44 (Tex. 2010) (per curiam) (orig. proce eding) (holding that a child ’ s d isplay of anger o r isolated instances
of bed wetting an d nig htma res coupled with lay

- witness testimony from people who
had obse rved th e grandparent with the child that denying access would i mpair the
child were insufficient to show significant impairment ); see Der za

p

f

, 219 S.W.3d at
330 (holdi ng no significant impa ir ment where , even after a psychologist testified that
it would “ no t be he alth y ” to cut off grand parent s ’ contact from the g rand child ren , there was no evidence showing that the children experience d depressi o n , beh avior
pro blems , or an ything more than “ ling ering sadness ” from being se parated from their grandparent s ); In re Turan , No. 13

- 19

- 00124

- CV, 20 19 WL 4871484 , at *5 (Tex.19 A pp.

— Co rpus Christi

– Edinburg Oct. 2, 2019 , orig. proce eding ) (mem. op . on reh ’ g) ( h olding th at grandpare nt di d not meet the signifi cant

- impairment standard where she
testified that the child had shown a cha nge in emotion al well

- b eing since contact had
be en reduced and that the child had expressed a desire for more contact with grandmoth e r ) ; In re J.M.G. , 553 S.W. 3d 137, 143 ( Tex. App

. — El Pa so 2018, o rig

. proceeding) (holding no standing for g randmothe r wh o d id not allege “ any fact s pertain ing either directly or indirectly to th e grandchildren ’ s physical or em otional
well

- being ” )

. Analys i s Thus, w e must determine if Grandmother ’ s affi davit and the evi dence adduced
at the temporary

- orders heari ng were s uf ficie nt as a matter of law t o show that denial
of Grandmother ’ s possession of or acces s to B.T. wo uld significantly impair B.T. ’ s physica l health o r em otional well

- being

. See Tex. Fam. Code Ann. § 153. 432. W e

co nclu de that any relevant allegatio ns by Gra ndmothe r wer e either insuffici ent to show significant imp airment or were sufficiently negated by the evidence asserted at the temporary ord e rs hearin g. See Mirand a , 1 33 S.W .3d at 227

. To show significa nt impairment, Grandmother averred in her affi davit tha t she
h ad been a consistent fi nan cial and psychological ca retaker for B.T. and had a “ close
emotional bond ” with the child

. She alleged tha t Mother w as placing B.T. i n unsafe
conditions an d cited seve n particular instances to illustrate these cond itions. A t the
h earing, she reiterated the substantial amount of care she had given to B.T. and added20 that B .T. had even referred to her as “ mom ” at one point

. According to
Gr andmother, Mother wa s incapab le of caring for B.T. without Grandmother ’ s help , of ten left B.T. in the care of various fr iends , and struggled to control B.T.
Grandmother worried that B.T. would lose a stable influence if their acc e ss to one another was curt ailed

. Further, at a recent v isit with Grandmother, B.T. had expressed
a desire n ot to ret urn to Mother and instead rema in w ith Grandmother

. In her testimony, Mother confirmed that Grandmother had cared extensively
for B.T. over t he cours e of the child ’ s young life but also explaine d that, in her opinion, th e relationship between Moth er and Gr andmoth er had made it such tha t
continu ing to utilize Grandmother as a daily caretaker for B.T. was no t in the child ’ s best in te rest. Mother provided additional conte xt for each of the s even in stances raised by Grandmother and b oth Mothe r and m ate rnal gran dmother stated that B.T. ’ s beh avior had not been different in re cent months: no grow th regress ion, bedwetting,

or despondency

. Fur ther, Moth e r had no t severed all con tact between B.T. an d
Gran dmother.
It was well establi shed that G randmother and B.T. had a bonde d relationship.
But Gra ndmother provided no facts

— neither in her affidavit nor at the hearing

— that
B.T. ha d been significantly impair e d by G randmother ’ s having less acce ss to an d possession of her. As in H.L. , G randmother made only concluso ry assert ions an d predictions about wha t the lack of possession and access might mean for B.T

. See
H.L. , 613 S.W.3d at 727. Further, s he did not rebut the testimon y that B.T. ’ s beh avior21 had not chan ged in recent months and even confirmed that B.T. was “ her normal

se lf ” at a recent visit

. See Der zapf 219 S.W.3d at 330. Th e fact that B.T. was sad at the prospect of leaving Grandmother ’ s care is not suffic i ent to establish standing und er section 153.4 32 of the family code

. Similarly, the trial court conferred upon this case the broad suppos ition tha t a chi ld “ may ” be traumatical ly or significantly harmed when contact between the child
and an at tachment fi gu r e ceases

— even though the pleadi ngs and eviden ce before it
were d e void of any showing that B.T. herself was suf fer ing any such trauma or harm

or t hat the contact between B. T. a nd Grandmother was going t o cease altoge ther

. See
Troxel , 530 U.S. at 68

– 75, 120 S. Ct. 2061

– 65 (holding that a trial court ’ s ord er for grandpar ent access unconstitutionally infrin ged on the parent ’ s fundamental right s where t here wa s no evidence that the par ent was unfit, that the child ’ s health and well

being would suffer, or that t h e pare nt intended to exclude gr andparent acce ss entirely )

. As to the seven incidents raised by G randmother in her affidavit, Mother
exp lained th ese suf ficiently to lead the t rial court to characterize them as mere

“ acci dents

. ” Further, most of the incide n ts occurred before the G randmot her was suppla nte d as B.T. ’ s da ily caregiver

. In other words, they cannot reasonably serve as
facts s howi ng that t he chil d is suffering or will suffer significant impair ment if
G randmother’s possession of and access to B.T. i s curtailed

.22 Having appropriately considered the pl eadings and e vidence, we hold that
Grandmother d id not, as a matter of law, establish standing under section 153.432 to

asse rt her claim for p ossession of and access to B.T. B ecause we have already held

t h at Grandmother does not have stand ing under 1 02.00 3 (a)(9) , we h old th at the trial

court abused its discretion by not dismissing Gr andmot her ’ s pos session and access
claim and b y entering its temporary orders naming Grandmother a te mporary
possessory con ser v ator and granting her access to B. T

. No Waive r of M andamus Reli ef
Grandmother contends that Mother waived any right to mandamus relief
b ecause sh e did n ot exercise due diligen ce by waiting to fil e her petition until December 13, 2021

— approximately five mo n ths after t he trial court rendered its oral

o rder a nd three mon ths after signing its written order. We overrule Grandmother ’ s argument b ecause sh e faile d to show harm stemming from Mother ’ s delay

. Although mandamus is not an eq uitable remedy, its issuance is largely
controlled by equitabl e pr incip les

. In re Users S ys. Servs. , Inc. , 22 S.W.3d 331, 337 (Tex.
1999 , orig. p roceeding). One such princip l e is th at “ [e]quity aids the d iligent and not those w ho slumber on their rights. ” Rivercenter Assocs. v. River a , 858 S.W.2d 366,
367 (Tex. 1993) (quoting Callahan v. Giles , 155 S.W.2d 793, 795 (1941))

. Th us, it is wel l
estab lished that mandamus relief may be denied where a party inexplicably delays

ass erting it s right s. In re Hinterlong , 10 9 S.W.3d 611, 620 (Tex. A pp.

— Fort Worth 2003, orig. proceeding). In determining whether a relator ’ s delay bar s ma ndamus23 relief, a co urt may analogize to the doctrine of laches

. Id

. A party asserting the d efense
of lac hes must show bo th an unreasonable dela y by the other party and harm resulting to it because of the delay. Id

. Here, Grandmother provides no showing tha t she was harm ed by Mother ’ s de lay in filin g her mandamus petition

. Accordingly, we overrule Grandmother ’ s
argume nt that Mother waived mandamus relief by failing to ex e rcise due di ligence

. 6
Conclu sion
Because Grandmother ’ s lack of standing left the tria l c ourt without s u bject

matter jur isdiction over her claims for conservatorship and for possession and acc ess, the trial c ourt abused its discret i on by (1) failing to dis m iss those claims , (2 ) gran ting
Grandmot her temporary access and possession , and (3) nam in g her B.T. ’ s temporary possessory conservator . Therefore, we sustain Mother ’ s standing issues and
cond i tionally grant Mother ’ s petition for w r it of mandamus

. We order the trial court to vacate its temporary orders naming Grandmother possessory conserv ator and
g r anting her possession of and access to B.T . and to dismiss Grandmother ’ s claims
for lack of stan ding. Onl y if th e trial court fails to c omply with this court ’ s o rder will
we issue the writ. We further deny Mother ’ s m otion fo r e merge ncy r eli e f as mo ot.

6 This opi nion is based on the record before us. We express no opinion as to whet her Grandmother may seek relief in the future based on a different motion and record.24 /s/ Mike Wallach Mike Wallach Justice
Delivered: February 3, 2022