Texas Case Law

IN RE PHARIS, 12-06-00350-CV (Tex.App.-Tyler [12th Dist.]
12-06-00350-CV. Court of Appeals of Texas, Twelfth
District, Tyler. Delivered: December 20, 2006.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE,


JAMES T. WORTHEN, Chief Justice.

In this original proceeding, Tonya Lynn Pharis seeks a writ
of mandamus ordering the trial court to vacate its order of
September 21, 2006 denying Pharis’s motion to dismiss a
suit affecting the parent-child relationship of Pharis and
her infant daughter, L.M.H. The suit was filed by Janie
Elaine Chasten, L.M.H.’s paternal grandmother.[fn1] We deny
the petition.


Pharis gave birth to L.M.H. on August 16, 2006, and both
mother and daughter were released from the hospital on
August 21. Two days later, on August 23, Chasten filed an
original suit requesting to be appointed L.M.H.’s temporary
sole managing conservator. Chasten alleged that she had
standing to bring the suit “in that the order requested is
necessary because the child’s present circumstances would
significantly impair the child’s physical health or
emotional development.” In her supporting affidavit,
Chasten stated that “[t]he mother of the child has not
cared for the child over night [sic] since her birth last
week and has only seen the child intermitten[t]ly.” After a
hearing, the trial court entered temporary orders
appointing Chasten as L.M.H.’s temporary sole managing
conservator and appointing Pharis as her temporary
possessory conservator. Pharis filed a motion to dismiss
the suit alleging that Chasten did not have standing. The
trial court conducted a hearing on Pharis’s motion and on
September 21, 2006 signed an order denying the motion. The
record does not show that findings of fact and conclusions
of law were requested or filed. This original proceeding


Mandamus is proper only to correct a clear abuse of
discretion when there is no adequate remedy by appeal. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992). Mandamus is an appropriate vehicle to
challenge a lack of jurisdiction to enter temporary orders
in child custody matters because these temporary orders are
not subject to interlocutory appeal. In re Lewin, 149
S.W.3d 727, 734 (Tex.App.-Austin 2004, orig. proceeding);
see TEX. FAM. CODE ANN. § 105.001(e) (Vernon Supp.
2006) (temporary orders in suit affecting parent-child
relationship not subject to interlocutory appeal).


Pharis contends that Chasten did not have standing to
institute the underlying suit. Accordingly, her argument
continues, the trial court did not have subject matter
jurisdiction of the suit and should have granted Pharis’s
motion to dismiss the suit.

Applicable Law

Subject matter jurisdiction is essential to a court’s
authority to decide a case. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is
implicit in the concept of subject matter
jurisdiction.[fn2] Id. Subject matter jurisdiction is never
presumed and cannot be waived. Id. at 443-44. A
grandparent’s relationship to a child does not
automatically confer standing to bring an original suit for
managing conservatorship. See Von Behren v. Von Behren, 800
S.W.2d 919, 921 (Tex.App.-San Antonio 1990, writ denied).
In the instant case, Chasten relied on Texas Family Code
section 102.004 to establish standing. The relevant portion
of this section provides that a grandparent may file an
original suit requesting managing conservatorship if the
grandparent provides “satisfactory proof” 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
ANN. § 102.004(a)(1) (Vernon Supp. 2006).[fn3] The
standard for determining whether the grandparent’s proof is
“satisfactory” is a preponderance of the evidence. Von
Behren, 800 S.W.2d at 921.


The record of the hearing on Pharis’s motion to dismiss
shows that Pharis lived in Trinity with her boyfriend and
his family prior to L.M.H.’s birth.[fn4] When Pharis and
L.M.H. were released from the hospital, L.M.H. was
jaundiced and had a doctor’s appointment the following
morning. In response to a question about whether the nurses
required that Pharis’s mother be there to take L.M.H. home,
Pharis replied, “Yes, sir. I was supposed to go home with
my mother.” However, she left the hospital with her
boyfriend and sent L.M.H. home with her mother. Pharis
explained that her boyfriend picked her up so she could get
some of her clothes. She then planned to take him to “the
boat” in Houston where he worked and keep his truck. She
stated that she and her mother did not get along and that
she needed transportation in case her mother upset her or
made her mad enough that she wanted to leave.

Pharis stayed with her boyfriend overnight and arrived at
her mother’s house the next morning too late for L.M.H.’s
doctor’s appointment. She testified that she rescheduled
the appointment for later the same day, but did not explain
her tardiness. After the appointment, Pharis returned to
Trinity. Before Pharis left, Chasten asked her if she could
keep L.M.H. for one night to allow her to spend time with
her father, and Pharis consented. Chasten testified that
after keeping L.M.H. overnight, she took her back to
Pharis’s mother, who expressed her physical inability to
care for L.M.H. and asked Chasten to talk to an attorney.
Chasten and Pharis’s mother then went together to see an
attorney, where both voiced their concern about what would
happen to L.M.H. if Pharis “got her back.” Later that day,
Chasten filed suit.

The above evidence does not reveal that Pharis exhibited
any interest in being with L.M.H. upon their release from
the hospital or that she expressed any concern about
L.M.H.’s medical condition. Pharis disregarded the
instructions she received at the hospital in order to be
with her boyfriend and was unavailable to spend time with or
provide care for L.M.H. She ostensibly left with her
boyfriend from the hospital to obtain his vehicle for
transportation. Once she had possession of his vehicle, she
did not stay at her mother’s house with L.M.H., but
returned to Trinity after L.M.H.’s doctor’s appointment.
Moreover, she left L.M.H. in the care of her mother, who
told Chasten that she was unable to physically care for the
child and who was concerned about what would happen to the
child if Pharis had possession of her. From this evidence,
the trial court reasonably could have found, by a
preponderance of the evidence, that the order Chasten sought
was necessary because L.M.H.’s present circumstances would
significantly impair the child’s physical health or
emotional development. Consequently, Chasten met her burden
to establish standing, and the trial court did not abuse
its discretion in denying Pharis’s motion to dismiss the

Pharis urges that Chasten’s suit was prompted by “nothing
more” than Chasten’s belief that she would be a better
choice than Pharis for managing conservator of L.M.H. This
argument is without merit in light of our holding that
Chasten presented sufficient evidence to establish
standing. Pharis also notes the absence of any evidence that
L.M.H. had been harmed. However, section 102.004(a)(1) does
not require a showing of actual harm to establish standing.
Pharis also states that her boyfriend had ample income and
that the home she shared with her boyfriend and his family
was adequate for L.M.H.’s care. Additionally, she points
out that she does not have a criminal record and has never
abused any substances or otherwise engaged in conduct that
would be harmful to her child. However, section
102.004(a)(1) relates to “the child’s present
circumstances.” L.M.H. was not in Pharis’s possession nor
was she at the home where Pharis lived with her boyfriend
and his family. Therefore, these facts are not dispositive.

In further argument, Pharis cites In the Interest of M.W.,
959 S.W.2d 661, 666 (Tex.App.-Tyler 1997, no writ), in which
this court stated that when a parent and a nonparent both
seek managing conservatorship, “close calls” go to the
parent. In M.W., we noted the strong presumption under
Texas law that the best interest of a child is best served
if a parent is awarded custody. Id. at 665. We further
noted that overcoming this presumption places a heavy
burden on the nonparent seeking appointment as managing
conservator. Id. at 665-66. However, M.W. was an appeal
from a judgment appointing a grandparent as managing
conservator. The parental presumption does not apply to the
determination of standing to file a suit affecting the
parent-child relationship. In the Interest of A.L.S., No.
09-05-00062-CV, 2006 Tex. App. LEXIS 332, at *9
(Tex.App.-Beaumont Jan. 13, 2006, no pet.). Pharis cites a
second case, Lewelling v. Lewelling, 796 S.W.2d 164, 167
(Tex. 1990), which also relates to overcoming the parental
presumption in a suit for managing conservatorship. Because
the issue in this proceeding relates solely to Chasten’s
standing, these cases are inapposite.


Based upon our review of Pharis’s mandamus petition and
the accompanying materials, we hold that Pharis has failed
to show the trial court abused its discretion in denying
her motion to dismiss Chasten’s original suit for managing
conservatorship of L.M.H. Accordingly, Pharis’s petition
for writ of mandamus is denied.

[fn1] Chasten is the real party in interest. The respondent
is the Honorable B. Jeffrey Doran, Judge of the County
Court at Law, Anderson County, Texas.

[fn2] Standing has been described as merely a right to be
heard and not a right to win. See Doncer v. Dickerson, 81
S.W.3d 349, 356 (Tex.App.-El Paso 2002, no pet.) (citing
John J. Sampson, Vol. 93-2 STATE BAR OF TEXAS SECTION

[fn3] Although the prior version required an immediate
question concerning the welfare of the child, the immediacy
requirement is not included in the current version. Compare
Act of June 20, 1987, 70th Legislature, R.S., ch. 744,
§ 1, 1987 Tex. Gen. Laws 2666 (requiring
satisfactory proof that the child’s present environment
presents a serious and immediate question concerning the
child’s physical health or welfare) and TEX. FAM. CODE ANN.
§ 102.004(a)(1) (requiring satisfactory proof that
child’s present circumstances would significantly impair
child’s physical health or emotional development).

[fn4] Pharis’s relationship with L.M.H.’s father terminated
sometime prior to L.M.H.’s birth. The record does not
indicate that Pharis and L.M.H.’s father were ever married.
Chasten stated in her supporting affidavit that “my son is
not a presumed father, but both he and the mother have
completed and forwarded to Austin the necessary paperwork
to establish his paternity.” Pharis confirmed this at the
hearing and stated that she believed Chasten’s son to be
L.M.H.’s father.