                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00265-CV


IN THE INTEREST OF D.A., A
CHILD

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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-100117-14

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                DISSENTING MEMORANDUM OPINION1

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      I respectfully dissent from the majority opinion’s conclusion that the trial

court erred by dismissing Grandmother’s suit for lack of standing. In this case,

standing is conferred by statute; thus, we must analyze whether the petition was

filed by a proper party under the statutory framework. See In re J.C., 399 S.W.3d

235, 238 (Tex. App.—San Antonio 2012, no pet.). “The party seeking relief must

allege and establish standing within the parameters of the statutory language.”

Id. (emphases added).

      1
       See Tex. R. App. P. 47.4.
      Grandmother alleged in her petition, in a section entitled “Residence

Requirement,” that “[t]he child will have lived in the home of [Grandmother] for at

least six (6) months when this cause is heard.”       As statutorily required, she

attached an affidavit to her petition in which she detailed where D.A. had lived

since 2006. See Tex. Fam. Code Ann. § 152.209(a) (West 2014). After the

Department filed its motion to dismiss Grandmother’s petition based on a lack of

standing, Grandmother did not respond and failed to appear for the hearing

although she had actual notice of the motion and the hearing. The Department

noted that Grandmother did not “state under what provision she is asserting

standing.” But the Department then argued that although Grandmother had not

alleged standing under section 102.005, she could not meet that statutory

standard.   See id. § 102.005 (West 2014).         In her motion for new trial,

Grandmother again did not allege section 102.005 other than to state in a

conclusory manner that she had “established a substantial past contact with

child.” She then specified, however, that she based her standing on the fact that

she had care, control, and possession of D.A. for at least six months, which had

ended less than ninety days before she filed her petition. See id. § 102.003(a)(9)

(West 2014).

      I would hold that Grandmother failed to sufficiently allege and establish

standing. As the person asserting standing, Grandmother had the burden to

allege and prove the applicable statute conferring standing. See In re S.M.D.,

329 S.W.3d 8, 12–13 (Tex. App.—San Antonio 2010, pet. dism’d). This she did


                                        2
not do. I do not believe that Grandmother’s factually incorrect allegation in her

petition that D.A. had lived with her for six months (which she stated in support of

a “residence requirement”), her affidavit that was attached as required by a

section of the family code that has no application to standing, or her specific

reference to section 102.003(a)(9) in her motion for new trial were sufficient to

establish standing under either section 102.003(a)(9) or section 102.005. We

cannot apply a different standard to Grandmother merely because she is

proceeding pro se. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85

(Tex. 1978); In re J.P., 365 S.W.3d 833, 837 (Tex. App.—Dallas 2012, no pet.);

Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort

Worth 1972, writ ref’d n.r.e.), appeal dism’d & cert. denied, 414 U.S. 948 (1973).

An attorney’s wholesale failure to address standing until raised in a motion for

new trial after a jurisdictional dismissal, failure to specify which statute conferred

standing, or the citation of an inapplicable standing statute would certainly be

deemed insufficient to sustain the burden of pleading and proof on standing.

Accordingly, the trial court correctly concluded that Grandmother failed to allege

or establish standing and, therefore, correctly dismissed Grandmother’s petition.

See In re C.M.C., 192 S.W.3d 866, 870 (Tex. App.—Texarkana 2006, no pet.).

                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

DELIVERED: February 5, 2015



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