In the Interest of H.L. and S.l., Children v. <<

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Court of Appeals of Texas, Fort Worth.

In the Interest of H.L. and S.l., Children

NO. 02–14–00388–CV

Decided: January 28, 2016

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

MEMORANDUM OPINION 1

Appellant M.L. (Mother) appeals from the trial court's final order in a suit affecting the parent-child relationship appointing a nonparent relative as the sole managing conservator of two of Mother's children, appointing Mother possessory conservator, and ordering possession that was less than the standard time of possession.  We affirm.

I. BACKGROUND

A. Divorce

Mother and P.L. (Father) divorced in 2006 after Mother “became involved with drugs,” specifically methamphetamine.  At the time of the divorce, Father and Mother's four children were sixteen (B.L.), fourteen (C.L.), six (H.L.), and three (S.L.).2  As part of the divorce proceedings, Father got a protective order against Mother on April 4, 2006, after she “assaulted him in front of the children” and hid drugs in their home for C.L. to retrieve for Mother.  Further, the Department of Family and Protective Services (DFPS) became involved at some point and required Father to “sign a statement that he would not allow [Mother] to be around the children,” which also led to the protective order.3  In 2006, Mother was jailed multiple times for violating the protective order and also was arrested for forgery and for manufacturing drugs with the intent to deliver.

In the June 7, 2006 final divorce decree, Father was awarded “primary custody” of the four children.  Mother moved out, and the children did not see her very often.  Father was the children's primary caregiver.  H.L. and S.L. both stated that they rarely saw Mother after the divorce.  C.L., B.L., and H.L. felt abandoned by Mother, and most of the family knew Mother used methamphetamine.  In fact, C.L. also had drug problems and admitted to stealing Mother's drugs for her own use.  In 2008, Mother had a child, J.B., with another man.  In 2009, Mother served eleven months in prison for possession of methamphetamine.  While she was in prison, J.B. was placed in foster care and, later, with Father.4  When Mother was released, she would see Father and her other children when she would leave J.B. in Father's care so she could “run the streets.”  Mother's drug use “was well known and she used methamphetamines for years.”

B. Father's Death

In 2012, Father's health began to decline.  At that time, C.L., C.L.'s child, C.L.'s boyfriend, B.L., B.L.'s two children, B.L.'s boyfriend, H.L., and S.L. all lived with Father.  On January 30, 2013, Father, H.L., and S.L. moved in with Father's brother T.L. (Uncle) and T.L.'s wife (Aunt) because Father could no longer care for himself, H.L., or S.L. Father told C.L. and B.L. that they and their families had to move out of Father's house.  Since 2007,5 Father had not had frequent contact with Uncle and Aunt, mainly because Uncle and Aunt's children were almost grown by the time Father began having children.  In any event, Father lived with Uncle and Aunt until he was hospitalized in February 2013;  he died on March 7, 2013.  During this time, H.L. and S.L. stayed with Uncle and Aunt. Mother saw Father once at the hospital before he died.  She also filed a lis pendens on Father's house while he was in the hospital.

Two days after Father's death, Mother began trying to get the locks changed on Father's house so she could get in, claiming that the divorce decree had been “voided,” but she was unsuccessful.  Father's funeral on March 11, 2013 was attended by several members of his family, including Father's children, but Mother did not attend.  Uncle and Aunt paid for all the funeral expenses.  Mother continued to try to gain access to Father's home, claiming it was hers, and eventually got in through an unlocked garage door and stayed there with her father for an extended period of time.  Uncle filed a motion to take possession of the house and to order Mother to vacate, which was granted.6

C. Probate Proceedings

Father left a will naming Uncle as the personal representative of Father's estate and as the guardian of H.L. and S.L.7 Father also expressed his intent in that will that his house be sold and the money put in a trust to pay for H.L.'s and S.L.'s college expenses.  Uncle filed an application to probate the will and to be named the temporary administrator.  Mother objected to Uncle's application for temporary administration and argued that she and Father were married at the time of his death.  The probate court granted letters of temporary administration to Uncle.  Mother also attempted to admit to probate an unsigned, handwritten will, arguing that it was Father's February 8, 1993 will.  In the probate court, Mother disputed many actions taken by Uncle as temporary administrator, but did not challenge his guardianship of the children.  The probate court found the handwritten will filed by Mother to be “invalid and void.”  Therefore, the probate court admitted the will proffered by Uncle to probate, issued letters of dependent administration to Uncle, and canceled the lis pendens filed by Mother on Father's house.

D. Temporary Conservatorship of H.L. and S.L.

Because H.L. and S.L. (collectively, the children) had remained with Uncle and Aunt after Father's death, Mother filed a petition for a writ of habeas corpus, alleging that the children were being illegally restrained by Uncle and Aunt and seeking to have the children returned to her custody.  Mother averred in an affidavit attached to her petition that she had legal custody of the children pursuant to the divorce decree entered on June 7, 2006.  Uncle filed a suit affecting the parent-child relationship (the SAPCR), seeking to be appointed the sole managing conservator of the children and alleging standing based on his status as their guardian and based on Mother's past drug use, instability, erratic behavior, and attempt to admit an unsigned will to probate alleging it was Father's will.8

Although Mother obtained an order for Uncle to deliver the children to her in court on April 3, 2013, Mother did not appear at the hearing.  In the SAPCR, the trial court appointed Uncle temporary sole managing conservator and Mother as temporary possessory conservator of the children.9  Because the trial court found “credible evidence ․ that [Mother] has a history or pattern of drug abuse,” Mother's unsupervised visitation with the children was conditioned on her submitting to, paying for, and passing drug-screen testing.  In April 2013, Mother tested positive for amphetamine and methamphetamine after submitting to a nail test.10

The court also ordered Mother to submit to psychological testing with Dr. Barry Norman.  Norman subsequently refused to complete the testing because Mother repeatedly was untruthful:

[Mother] is espousing prevarications regarding myself and my involvement in this case and the reality is that I have not even started the evaluation process.  She appeared in my office ․ stating that she had called me on five occasions and I had not returned her calls.  I confronted her on that false statement, stating that she had called me on one occasion and I had simply not returned her call, as yet.  On that date, ․ I [forwarded to Mother] a one page contract for her to return to me by the U.S. Postal Service and that would start the evaluation process․  [Approximately three weeks later, Mother] called and inquired why the evaluation had not started and asked if [Uncle's attorney] had paid for the evaluation.  I replied in the affirmative regarding payment and told her she needed to return her contract to me․  She informed me that she gave the contract to the court.

[Six days later], she called again to say she came by my office and it was closed and that she wanted to deliver the contract.  I again informed her that she had to send me that contract via the Postal Service․  I [never] received that contract.

[Uncle's attorney] informed me that she had made a false statement deliberately presented to the court as being true, i.e., that she had called me on five occasions and I had never returned her call.  Due to [Mother's] inability to follow instructions and/or tell the truth, I find it necessary to decline any further contact with her.

The court appointed Dr. Nichelle Wiggins to perform the psychological testing and further ordered that a social study be completed.

Wiggins's testing revealed that Mother was “evasive and withholding of information,” which prevented Wiggins from accurately diagnosing Mother or measuring the extent of her addictions.  Wiggins found Mother to be hard to follow—she was “tangential and disorganized,” continually referred to Uncle as the “alleged uncle,” denied that her abuse of methamphetamine affected her life, and blamed her problems on other people.  At one point, Mother stated she had last used methamphetamine in December 2013, but when Wiggins questioned her further “to get more details as to what was going on during that time of her life, she changed her last date of use of methamphetamines to December 2012.”  Mother would not tell Wiggins where she lived because she did not want Uncle and Aunt “to bother her or to have [DFPS] get involved.”  In summary, Wiggins concluded Mother's “prognosis for any form of psychological intervention is poor because of her lack of insight into her behavior, trust issues, and resistance to opening up to the idea that she may benefit from treatment.”

The social study conducted by Susan Goldstein, a social worker, similarly found Mother to be untruthful, hard to follow, evasive, and manipulative.  Mother told Goldstein that the reason her drug-screen test in April 2013 was “alleged[ly]” positive for methamphetamine was because Uncle and Uncle's attorney tampered with the results.  Mother wrote a nonexistent address on her “intake form,” but Goldstein eventually was able to locate where Mother lived based on the address Mother gave on her “data form.”  Goldstein concluded that the apartment was “clean and no safety hazards were noted.”  Mother continued to dispute that she and Father were divorced, calling it the “alleged divorce,” 11 and that Uncle was Father's brother.  The social study also noted that Mother had arranged a meeting between H.L. and H.L.'s birth mother and urged her to seek a “reverse adoption” because H.L. allegedly had told Mother that she only wanted to live with the birth mother or Uncle and Aunt. H.L.'s birth mother told Goldstein that she was “upset that she placed her child for adoption with [Mother] who turned out to be unstable.”  Goldstein recommended the children be placed in Uncle and Aunt's sole custody with Mother only having visitation:

It is recommended that [H.L.] and [S.L.] be placed in the sole custody of [Uncle and Aunt]. It does not seem likely that there will be a productive co-parenting ability with [Mother].  [Mother] remains bitterly angry at [Uncle and Aunt] and refuses to even acknowledge their place in the family much less be able to agree on medical and educational decisions.  [Mother] has no financial means to support additional children;  she has been unemployed since 2006 and has no verifiable means of how she supports herself now.  I have further concerns about [Mother's] ability to meet her children's emotional needs as she has a limited ability to regulate her emotions and to keep things in perspective.

E. Trial

Mother, acting pro se, requested a jury trial.12  A jury unanimously found that it was in the children's best interest for Uncle to be the sole managing conservator of the children and for Mother to be possessory conservator.  The trial court rendered a final order on the jury's findings and further rendered a modified standard possession order for Mother, allowing Mother to have summer possession of the children for the last two weeks of June and the last two weeks of July instead of four contiguous weeks.

F. Post–Trial and Appeal

Mother requested that the trial court enter findings of fact and conclusions of law.  See Tex.R. Civ. P. 296.  The court entered findings and conclusions regarding Mother's possession, access, and child-support obligations, which were issues decided by the trial court, not the jury.  See Tex. Fam.Code Ann. § 105.002(c)(2) (West 2014).  The trial court found Mother's access to the children should be limited because of Mother's “lengthy history of illegal drug abuse” and because Mother “has a history of secreting her contact information, her location of residency, residing in premises belonging to others, failing to pay rents, non-disclosure or documentation of resources for her living expenses, and not providing stable housing for her children.”  The trial court also found that Mother “refuses to obtain employment to support her children as long as she is utilizing the court process in this case, since, as she reports, ‘this is her full-time job.’ ”  The court noted that the “slight” deviation from the standard summer possession order was “agreed by the parties to allow the children to continue going to their church camp activities during specific weeks.”

Mother appeals and argues that Uncle did not have standing to file suit seeking managing conservatorship and that insufficient evidence was introduced to rebut the parental presumption.  Mother also argues that the trial court abused its discretion by naming Uncle sole managing conservator without making the required findings to deny a parent managing conservatorship in favor of a nonparent, by giving Mother less than standard visitation, and by limiting her rights as possessory conservator.  Mother finally asserts that the evidence was insufficient to support the jury's attorney-fee award as reasonable.

Before Mother's pro bono appellate attorney entered an appearance in this court, Mother filed a motion asking this court to review de novo the trial court's findings of fact entered after the final judgment.  To the extent appellate counsel challenges any finding on appeal, we grant the motion and will review the challenged finding under the appropriate standard of review.

II. STANDING

In her first issue, Mother argues that Uncle failed to sufficiently show that he had standing under section 102.004(a)(1).13  Section 102.004(a)(1) confers standing on a nonparent relative to seek managing conservatorship of a child if the relative produces “satisfactory proof” that such an order 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) (West 2014).

We review the issue of Uncle's standing de novo.  See Mauldin v. Clements, 428 S.W.3d 247, 262 (Tex.App.—Houston [1st Dist.] 2014, no pet.);  In re M.J.G, 248 S.W.3d 753, 757 (Tex.App.—Fort Worth 2008, no pet.);  SSJ–J, 153 S.W.3d at 134.  Uncle had the burden of proof to establish his standing, and that burden was by a preponderance of the evidence.  Mauldin, 428 S.W.3d at 263;  In re McDaniel, 408 S.W.3d 389, 397 (Tex.App.—Houston [1st Dist.] 2011, orig. proceeding).

Both Mother and Uncle argue standing under the authority of section 102.004(a)(1) and whether Uncle met his burden of proof to show that at the time he filed the SAPCR, Mother's appointment as managing conservator would significantly impair the children's physical health or emotional development.14  See Mauldin, 428 S.W.3d at 262, 264.  The trial court held a hearing on Mother's request for a de novo review of the associate judge's determination of temporary conservatorship, and the testimony focused solely on whether Mother's appointment would have significantly impaired the children's physical health or emotional development.  The trial court affirmed the associate judge's order granting Uncle temporary managing conservatorship of the children.  At the hearing, the trial court heard evidence that at the time Uncle filed the SAPCR, Mother had a history of using illegal drugs, had unstable housing, attempted to unlawfully move into Father's home after he died, and displayed erratic behavior.15  Uncle produced satisfactory proof by a preponderance that Mother's appointment as managing conservator would significantly impair the children's physical health or emotional development.  See, e.g., McDaniel, 408 SW.3d at 397–98;  In re N.L.D., 344 S.W.3d 33, 38–39 (Tex.App.—Texarkana 2011, no pet.).  We conclude Uncle met his burden of proof to establish standing under section 102.004(a)(1) and overrule issue one.16

III. EXERCISE OF DISCRETION

Mother next challenges the trial court's order appointing Uncle as the children's sole managing conservator based on the jury's verdict, decision to award Mother less than standard visitation, and denial of Mother's right to make decisions concerning the health and education of the children.  Mother argues each was an abuse of the trial court's discretion.

A. Appointment of Uncle as Sole Managing Conservator

The family code provides that a parent shall be appointed sole managing conservator unless the court finds that such an appointment would not be in the children's best interest because it would significantly impair their physical health or emotional development.  Tex. Fam.Code Ann. § 153.131(a) (West 2014).  Mother asserts in her second issue that the trial court abused its discretion by rendering an order based on the jury's verdict appointing Uncle the children's sole managing conservator because Uncle failed to rebut the parental presumption by showing that such an order was in the children's best interest.  She also argues that the trial court abused its discretion by failing to make specific findings on each element required to rebut the parental presumption.

Mother does not clearly attack the legal or factual sufficiency of the jury's finding that Uncle was the appropriate sole managing conservator;  she solely attacks the trial court's order on the jury's verdict as an abuse of discretion.  See generally In re D.A., 307 S.W.3d 556, 561 (Tex.App.—Dallas 2010, no pet.) (recognizing party entitled to jury determination of managing conservatorship, trial court may not contravene jury's verdict, and jury's findings subject to legal and factual sufficiency review).  Mother requested a jury trial, and the trial court was not authorized to contravene the jury's verdict on the appointment of a sole managing conservator.  See Tex. Fam.Code Ann. § 105.002(c)(1)(A) (West 2014).  The trial court did not err by rendering an order following the jury's verdict on the issue of sole managing conservatorship.

Mother next contends that the trial court abused its discretion by failing to enter detailed findings regarding how Uncle rebutted the parental presumption of section 151.131 to justify his appointment as sole managing conservator.  In making this argument, Mother points to the findings the trial court made regarding Mother's visitation, access, and child-support obligations.  These issues were tried separately from the issue of conservatorship and were issues for the trial court, not the jury.  See, e.g., id. §§ 105.002(b)(2), 153.258, 154.130 (West 2014) (prohibiting jury determination of child support and of terms or conditions of possession and access and requiring trial court upon request to enter findings when possession order varies from standard order and when rendering child-support order).  The jury concluded that the parental presumption had been rebutted, which the trial court could not contravene.  Thus, findings on that issue by the trial court would have been inappropriate.  See Roberts v. Roberts, 999 S.W.2d 424, 433–34 (Tex.App.—El Paso 1999, no pet.).  See generally Tex.R. Civ. P. 296 (providing avenue to request findings and conclusions “[i]n any case tried in the district or county court without a jury”).

In the alternative, Mother argues that she “should be appointed joint managing conservator along with [Uncle] if the Court deems that to be in the children's best interest.”  The trial court's charge solely asked the jury whether Uncle or Mother should be appointed sole managing conservator.  Mother did not object or request that the jury be charged on joint managing conservatorship.  Mother waived any argument that she should be a joint managing conservator.  See In re T.J.S., 71 S.W.3d 452, 457 (Tex.App.—Waco 2002, pet. denied).

We note that even if Mother had properly raised the issue of the sufficiency of the evidence to support the jury's finding regarding sole managing conservatorship, we would conclude that the evidence sufficiently showed that Mother's appointment as sole managing conservator would significantly impair the children's physical health or emotional development and, thus, would not be in their best interest.  Mother's behavior before Father's death, during the probate proceedings, and during the proceedings on Uncle's petition for managing conservatorship was erratic and uncooperative.  She continually asserted she was not divorced from Father even though she had participated extensively in the divorce proceedings.  She tried to claim she and Father reconciled such that they were married under the common law in an attempt to get assets that had been awarded to Father in the divorce, even though B.L., C.L., and H.L. stated that Mother had effectively abandoned them after the divorce.  H.L. told her counselor that she wanted to remain with Uncle and Aunt. Mother had an extensive drug history and had failed a drug test after she claimed she stopped using methamphetamine.  She refused to comply with some of the required drug testing.  Mother was chronically unemployed.  Mother never recognized that Uncle was Father's brother, did not pay court-ordered child support, and was not forthcoming with Wiggins or Goldstein.  The children told Goldstein that they would like to be with Mother, but they believed regular visitation would be acceptable.  Goldstein recommended that Uncle have sole managing conservatorship of the children.  Wiggins opined at trial that it would be physically or emotionally detrimental to the children for Mother to be named sole managing conservator.  Although Mother introduced evidence that she was no longer using methamphetamine and had custody of J.B., a reasonable fact-finder could have concluded that Mother would significantly impair the children's physical health or emotional development if she were sole managing conservator.  See, e.g., In re J.J.R., No. 13–11–00502–CV, 2012 WL 1810211, at *6–8 (Tex.App.—Corpus Christi May 17, 2012, no pet.) (mem.op.);  In re R.T.K., 324 S.W.3d 896, 904–05 (Tex.App.—Houston [14th Dist.] 2010, pet. denied) (op. on reh'g);  In re C.R.T., 61 S.W.3d 62, 67–68 (Tex.App.—Amarillo 2001, pet. denied);  In re Hidalgo, 938 S.W.2d 492, 496–97 (Tex.App.—Texarkana 1996, no pet.).  We overrule issue two.

B. Nonstandard Visitation

In her third issue, Mother asserts that the trial court abused its discretion by varying the standard possession order because the evidence did not rebut the presumption that a standard possession order would provide Mother with reasonable possession and would be in the children's best interest.  See Tex. Fam.Code Ann. § 153.252 (West 2014).  As pointed out by Uncle, the only deviation from the standard possession order was that Mother's summer possession was divided into two, two-week periods instead of thirty consecutive days.  See id. § 153.312(b)(2) (West 2014).  It was agreed to by the parties “to allow the children to continue going to their church camp activities during specific weeks,” which the trial court noted in its findings.  See id. § 153.255 (West 2014).  The variance from the standard possession order was agreed to by Mother, was in the best interest of the children, and was not an abuse of discretion.  See id. §§ 153.252, .255;  Pan alez v. Telano, No. 03–14–00675–CV, 2015 WL 7422972, at *6 (Tex.App.—Austin Nov. 19, 2015, no pet.) (mem.op.);  Beeler v. Beeler, No. 03–01–00295–CV, 2002 WL 1025062, at *4–5 (Tex.App.—Austin May 23, 2002, no pet.) (not designated for publication).  We overrule issue three.

C. Health, Education, and Welfare Decisions

In the trial court's final order, Uncle was granted the right to provide and consent to medical treatment for the children and to make decisions regarding the children's education.  He also was given the right to manage the children's estate and to consent to the children's marriage or enlistment in the armed services.  Mother was granted the right to consent to emergency medical treatment for the children and the right to confer with Uncle “to the extent possible” regarding health, education, and welfare decisions for the children.  In its findings, the trial court found that Mother's rights as possessory conservator should be limited based on her “history of secreting her contact information, her location of residency, residing in premises belonging to others, failing to pay rents, non-disclosure of documentation of resources of her living expenses, and not providing stable housing for her children.”  The trial court also found that Mother refused to find a job because she believed the conservatorship case was her full-time job.  The trial court concluded that the limited rights given to Mother as possessory conservator were in the children's best interest.  See Tex. Fam.Code Ann. § 153.072 (West 2014).

In her fourth and fifth issues, Mother argues that the trial court abused its discretion by not allowing her to make decisions concerning the health and education of the children, impermissibly infringing on her constitutional right to parent.  See id. § 153.073(a) (West 2014).  The evidence at trial showed that Uncle and Mother could not co-parent.  Mother refused to acknowledge that Uncle was a relative and would not seek employment to support the children.  Mother was difficult, erratic, untruthful, and threatened to abscond with the children.  Some evidence of substantive and probative character supported the trial court's findings limiting Mother's rights as possessory conservator;  thus, the trial court did not abuse its discretion.  See, e.g., Messier v. Messier, 389 S.W.3d 904, 908–11 (Tex.App.—Houston [14th Dist.] 2012, no pet.);  Elshafie v. Elshafie, No. 13–10–00393–CV, 2011 WL 5843674, at *2–5 (Tex.App.—Corpus Christi Nov. 22, 2011, no pet.) (mem.op.).  Further, these limitations do not unconstitutionally infringe on Mother's right to parent the children.  See Franyutti v. Franyutti, No. 04–02–00786–CV, 2003 WL 22656879, at *5 (Tex.App.—San Antonio Nov. 12, 2003, no pet.) (mem.op.);  In re M.N.G., 113 S.W.3d 27, 33–35 (Tex.App.—Fort Worth 2003, no pet.).  We overrule issues four and five.

IV. ATTORNEY'S FEES

In her sixth issue, Mother argues that the evidence was legally and factually insufficient to support the jury's finding that Uncle was entitled to an award of attorney's fees against Mother or that $48,250 was a reasonable and necessary amount.

The family code authorizes an award of reasonable attorney's fees in suits affecting the parent-child relationship, and the issue may be submitted to the jury.  See Tex. Fam.Code Ann. § 106.002 (West 2014);  Drexel v. McCutcheon, 604 S.W.2d 430, 435 (Tex.Civ.App.—Waco 1980, no writ).  At trial, Uncle's attorney testified to his hourly rate, the reasonableness of his hourly rate in the community, and how many hours he expended on Uncle's petition for managing conservatorship, which spanned twenty-two months and involved several hearings, a four-day trial, and numerous filings.  Uncle's attorney testified that Uncle incurred a total of $48,540 in attorney's fees.  Uncle's attorney supported these amounts by admitting his billing records into evidence.  Mother did not dispute this testimony.  This evidence was legally and factually sufficient to support the jury's finding that a reasonable fee for the necessary services of Uncle's attorney was $48,250.  See, e.g., In re A.B.P., 291 S.W.3d 91, 98–99 (Tex.App.—Dallas 2009, no pet.).  We overrule issue six.

V. CONCLUSION

Having overruled Mother's issues, we affirm the trial court's final order in the SAPCR.  See Tex.R.App. P. 43.2(a).

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   Mother and Father had another child, their oldest, who died of a drug overdose on October 12, 2006, when he was eighteen.  Mother and Father adopted H.L.

3.   The trial court vacated the protective order on January 9, 2007, three months before it was due to expire, after Mother and Father allegedly reconciled.

4.   J.B. was returned to Mother in January 2012.

5.   Before 2007, Uncle stated that he saw S.L. and H.L. about six times ayear.

6.   The probate court ultimately allowed Uncle to sell the house.

7.   Based on this provision in the will, H.L. and S.L. remained with Uncle and Aunt after Father's death.

8.   Mother filed a glut of pro se pleadings regarding Uncle's petition requesting sole managing conservatorship that we need not detail other than to note she sought to recuse judges, sought to modify the visitation schedule and conditions on many occasions, repeatedly moved for Uncle to undergo DNA testing, and attempted to remove Uncle's petition to federal court.  At the conclusion of the May 30, 2014 hearing on one of Mother's motions to modify the visitation order, Mother “rant[ed]” to the court that the next time she saw the children, she would not return them to Uncle.  The trial court suspended all visitation with the children at that point, which was approximately six months before trial.

9.   These rulings were first made by an associate judge, but the trial court affirmed them after Mother sought a de novo review.

10.   A hair-strand test collected at the same time was negative for amphetamine use;  however, a nail test detects for a longer amount of time than a hair-strand test.  A nail sample Mother gave later in 2013 was never tested because Mother would not pay for the test.

11.   Goldstein noted that court records showed to the contrary:  Mother had been “an active participant in the divorce.”

12.   Mother was represented by two, separate attorneys until approximately ten months before the December 2014 jury trial.  Mother's first attorney moved to withdraw because he and Mother could not “agree upon the terms and conditions of present and future representation.”  Specifically, Mother was filing pro se filings against his advice.  Similarly, Mother's second attorney, who was court appointed for a contempt motion based on Mother's failure to pay child support, moved to withdraw two weeks after the appointment because he could not “effectively communicate with [Mother] in a manner consistent with good attorney-client relations.”  Mother proceeded pro se until this appeal.

13.   ln the trial court, Mother attacked Uncle's standing only by alleging in her answer to Uncle's suit that Uncle “does not have standing to bring suit.”  But because standing is a component of subject-matter jurisdiction, we may address the issue even if it was not raised in the trial court.  See In re SSJ–J, 153 S.W.3d 132, 134 (Tex.App.—San Antonio 2004, no pet.).

14.   In her reply brief, Mother argues that Uncle also failed to establish standing under section 102.004(b), which confers standing on a grandparent or “other person” to seek possessory conservatorship as an intervenor in an already pending suit based on substantial past contact with the children.  Tex. Fam. Code Ann. § 102.004(b).  Uncle was not intervening in a pending suit, nor was he seeking only possessory conservatorship; Uncle was filing an original suit for managing conservatorship. Accordingly, section 102.004(b) does not apply.

15.   Mother does not dispute that the evidence adduced at the hearing is properly considered in a determination of Uncle's standing.

16.   Additionally, it appears Uncle was appointed the children's guardian based on Father's will, which was admitted to probate.  This was an independent ground establishing his standing, which he alleged in the SAPCR.  See Tex. Fam.Code Ann. § 102.003(a)(4) (West Supp.2015).

LEE GABRIEL, JUSTICE