Opinion issued November 22, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01026-CV

TAMMY RENEE WHITWORTH, Appellant

V.

DOUGLAS WAYNE WHITWORTH, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2000-64428

O P I N I O N

          Appellant, Tammy Renee Whitworth, challenges the trial court’s final decree of divorce that named intervenor, Carol Whitworth, sole managing conservator of Tammy’s minor child, K.C. In two issues on appeal, Tammy argues that the trial court erred (1) in failing to name her as joint managing conservator and (2) in giving her less than a standard possession order.

          We reverse and remand the cause.

Background

          Tammy and Douglas married in August 2000, but separated in September or October 2000. Douglas filed an original petition for divorce on December 20, 2000. A second original petition for divorce was filed by Tammy on December 23, 2000. On April 20, 2001, the trial court signed an order of consolidation. Tammy and Douglas’s only child, K.C., was born on June 13, 2001. The parties reconciled off and on, separating for the final time on January 2002. By order entered November 30, 2001, Tammy was given custody of K.C. and Douglas was given two hours a day visitation five days a week and ordered to pay $500 a month to Tammy as temporary spousal support. On February 22, 2002, Tammy filed a motion for enforcement of temporary spousal support.

          On October 18 and 21, 2002, the trial court heard the parties’ application for temporary custody orders pending the divorce. Although we have no transcript of the hearing, testimony from the divorce hearing indicates that the court heard testimony that Tammy had repeatedly denied Douglas access to K.C. and that Tammy alleged that Douglas had sexually abused A.C. and she feared his unsupervised visitation with K.C. The testimony further indicated that, during the course of the hearing on October 18, the associate judge ordered Tammy to have her mother, Gayle Cash, bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not, but Tammy did not have her brought. The trial court also ordered Tammy to have her mother bring K.C. to court for the October 21 continuation of the hearing. The docket sheets reflect that, at the end of the October 18 hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for “continuous parental alienation against father through repeated visitation/access denials and behavior in court.”

          The same day, October 18, Carol Whitworth, Douglas’s mother, filed an original petition for intervention, relying on section 102.004(a)(1) of the Texas Family Code, which grants grandparents standing to seek managing conservatorship of a child when the child’s environment “presents a serious question concerning the child’s physical health or well-being” or both parents consent. See Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 125, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 1048, § 2, 1999 Tex. Gen. Laws 3877, 3878 (current version at Tex. Fam. Code Ann. § 102.004(a)(1) (Vernon Supp. 2006)) (“Tex. Fam. Code Ann. 102.004”). Carol requested that K.C. be placed in her care on “a temporary and/or permanent basis.” She stated no facts or substantive grounds for intervention in her petition.

          Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on October 21. At the end of the hearing, the associate judge entered an order appointing Carol, the non-parent intervenor, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program (“SAFE”). The October 21 docket sheet stated that Tammy and her mother, Gayle Cash, had “exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing” and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the court deemed Tammy a “flight risk with child as demonstrated by her behavior to court since 10/18/02.” The court ordered psychological evaluations of Tammy, Douglas, and Carol by Dr. Edward Silverman. Both Tammy and Douglas were ordered to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol’s residence. The court further enjoined Carol from taking K.C. on the Coushatta Indian Reservation and from removing her residence from Harris County. The court also appointed a guardian ad litem for K.C., ordered Tammy and Douglas to share the ad litem’s fees, and ordered Douglas to pay spousal support to Tammy.

          On February 13, 2003, the trial court ordered that the injunction issued on October 31, 2002, preventing Carol from taking K.C. to the Coushatta Indian Reservation, be removed. The court also ordered that Tammy and Douglas were enjoined from taking photos of K.C. while she was at SAFE.

          Starting on April 13, 2004, the trial court heard evidence to determine custody of K.C. At the time of trial, Douglas was not seeking primary custody of the child. The trial court entered a final decree of divorce on May 17, 2004, declaring that neither Tammy nor Douglas could be the managing conservator of K.C. because it “would not be in the best interest of the child because such appointment would significantly impair the child’s physical health or emotional development.”

          The decree ordered that Carol, the non-parent intervenor, be appointed as the sole managing conservator of K.C. The court found that a standard possession order for either Tammy or Douglas was inappropriate and not in the best interest of K.C. It ordered that Tammy continue to have only supervised visitation for four hours every other Saturday and that Douglas have supervised visitation to be determined by his mother, Carol. The court entered no findings of fact or conclusions of law. On June 14, 2004, Tammy filed a motion for new trial, which the trial court denied. Tammy appeals from the trial court’s custody determination in the divorce decree.

Standing

          Tammy complains in her first issue that the trial court erred in failing to name her a joint managing conservator of K.C. in violation of the Due Process Clause of the United States Constitution and of section 153.131 of the Family Code, which establishes the presumption that a parent is to be appointed managing conservator of a child. See Tex. Fam. Code Ann. §§ 153.131 (Vernon 2002). Sole managing conservatorship of K.C. was, instead, awarded to K.C.’s paternal grandmother, Carol, who intervened in Tammy and Carol’s son Douglas’s divorce proceedings to seek managing conservatorship of K.C. pursuant to section 102.004(a)(1) of the Texas Family Code, entitled “Standing for Grandparent.” Section 102.004 provides

          (a)     In addition to the general standing to file suit provided by Section 102.003(13), a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

                    (1)     the order requested is necessary because the child’s present environment presents a serious question concerning the child’s physical health or welfare; or

                    (2)     both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

Tex. Fam. Code Ann. § 102.004(a)(1).

          These statutory standing requirements raise a threshold issue of whether Carol had standing to intervene in Tammy and Douglas’s divorce to seek managing conservatorship of K.C.

          The parties did not raise standing in their initial set of briefs, but we may address it sua sponte. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Standing is implicit in the concept of subject matter jurisdiction. Waco Indep. Sch. Dist, 22 S.W.3d at 443; Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.—El Paso 2002, no pet.). Subject matter jurisdiction is essential to the authority of a court to decide a case. Texas Ass’n of Bus., 852 S.W.2d at 443. Standing, as a necessary component of a court’s subject matter jurisdiction, is a constitutional prerequisite to maintaining suit. Id. at 444; In re C.M.C. & J.T.C., 192 S.W.3d 866, 869 (Tex. App.—Texarkana 2006) (orig. proceeding). The standing requirement stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision. Texas Ass’n of Bus., 852 S.W.2d at 443. Subject matter jurisdiction is never presumed and cannot be waived. Id. at 443–44. If a party lacks standing, a court lacks subject matter jurisdiction to hear the case. Id. at 444; In re C.M.C., 192 S.W.3d at 869.

          Standing presents a question of law which we review de novo. See Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex. App.—Fort Worth 2001, no pet.). In accordance with Texas Association of Business v. Texas Air Control Board, “[w]hen a Texas appellate court reviews the standing of a party sua sponte, it must construe the petition in favor of the party, and if necessary, review the entire record to determine if any evidence supports standing.” Texas Ass’n of Bus., 852 S.W.2d at 446. When a party lacks standing the appropriate disposition is dismissal. In re C.M.C., 192 S.W.3d at 870. Dismissal for lack of subject matter jurisdiction does not decide the merits of the case. Id.

          The Family Code provides that a suit requesting managing conservatorship may be filed under section 102.004(a) of the Code by a grandparent as necessary when the child’s present environment presents a serious question concerning the child’s physical health or welfare. Tex. Fam. Code Ann. § 102.004(a); In re R.D.Y., 51 S.W.3d 314, 324–25 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The burden of proof on the issue of standing to initiate the suit is imposed upon Carol. See In re Pringle, 862 S.W.2d 722, 725 (Tex. App.—Tyler 1993, no writ) (stating that burden of proof to initiate suit is imposed upon grandparent petitioners).

          When, as here, a suit seeking managing conservatorship of a child is filed by a grandparent under section 102.004(a) of the Family Code, the court must make a threshold finding of serious and immediate concern for the welfare of the child based upon a preponderance of the evidence before the grandparent will have the right to sue for custody. In re R.D.Y., 51 S.W.3d at 325. “A child must be in imminent danger of physical or emotional harm for there to be a serious question concerning the child’s physical health or welfare.” Id.; see also McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977); In re Pringle, 862 S.W.2d at 724–25 (“The Supreme Court has held that the elements of seriousness and immediacy as drafted in the statute require that the child be in imminent danger of physical or emotional harm and that immediate action is necessary to protect it.”). The statute contemplates “a situation where the child [is] in imminent danger of physical or emotional harm and immediate action [is] necessary to protect the child.” Forbes v. Wettman, 598 S.W.2d 231, 232 (Tex. 1980); McElreath, 545 S.W.2d at 958; In re M. Lau, 89 S.W.3d 757, 759 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (stating that, before trial court renders temporary order, there must be “imminent danger of physical or emotional harm that requires immediate action to protect the child”).

          Here, Carol did not allege any facts to support her intervention to seek managing conservatorship of K.C. pursuant to section 102.004(a). Nor did the trial court make any findings that K.C. was in imminent danger of physical or emotional harm from her mother. See R.D.Y., 51 S.W.3d at 325. Nor is there a scintilla of evidence in the record that K.C. was in imminent danger of physical or emotional harm from Tammy on October 18, 2002, when Carol filed her petition in intervention, or three days later, on October 21, 2002, when the court removed Tammy as managing conservator of K.C. and named Carol temporary managing conservator. Rather, the record reflects that Tammy had made serious allegations about her fears for K.C.’s physical and emotional harm in Douglas’s care as justification for her failure to turn K.C. over to Douglas and his mother for unsupervised visitation. We conclude that the court failed to make the requisite threshold factual findings that K.C. was in imminent danger of physical or emotional harm in Tammy’s care and that immediate action was necessary to protect her from Tammy, and that there is no evidence to support such factual findings, without which Carol’s right to sue for custody could not be established. See R.D.Y., 51 S.W.3d at 325.

          Section 153.131 of the Family Code provides that, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because it would “significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators.” Tex. Fam. Code Ann. § 153.131(a). For the court to award managing conservatorship to a non-parent under section 153.131, “the non-parent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child physically or emotionally.” Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is wholly inadequate simply to present evidence that a non-parent would be a better choice as custodian of the child. Id. The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id.; see also In the Interest of M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, no writ); Brook v. Brook, 881 S.W.2d 297, 298 (Tex. 1994). There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. M.W., 959 S.W.2d at 665. This link between the parent’s conduct and harm to the child may not be based on evidence which merely raises a surmise or speculation of possible harm. Id.

          Prior cases have indicated certain acts or omissions that demonstrate significant impairment of the child, such as physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior on the part of the parent. Id. at 666; Thomas v. Thomas, 852 S.W.2d 31, 35–36 (Tex. App.—Waco 1993, no writ); See Lewelling, 796 S.W.2d at 167–168 (holding that evidence that parent is victim of spousal abuse and that parent is unemployed, living in crowded conditions, and had multiple visits to mental hospital is no evidence that awarding custody to parent would significantly impair child); In the Interest of Hidalgo, 938 S.W.2d 492, 497 (Tex. App.—Texarkana 1996, no pet.) (holding that mother effectively abandoned child).

          Here, the record contains no evidence of specific, identifiable behavior on Tammy’s part that would result in significant impairment of K.C.’s physical health or emotional development at the time the court removed her as managing conservator and appointed Carol.

          We hold that Carol failed to establish standing to seek managing conservatorship of K.C. and that the trial court abused its discretion in awarding her temporary managing conservatorship of K.C. and bootstrapping its award of permanent managing conservatorship on its improper award of temporary managing conservatorship to a non-parent pursuant to a suit for custody over which it lacked subject matter jurisdiction.

          Conclusion

          We reverse the judgment of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.