in the Interest of S.D., a Child

COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00102-CV

IN THE INTEREST OF S.D., A CHILD

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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 325-550977-14

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MEMORANDUM OPINION1

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After the same-sex relationship between Appellant S.L.D. and Appellee S.M.D. ended, S.L.D. filed suit seeking joint managing conservatorship of S.D., a child born to S.M.D. through artificial insemination during the relationship. S.L.D. based her claim to standing on family code section 102.003(a)(9), which provides that “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition,” has standing to bring a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. § 102.003(a)(9) (West 2014). 2 The trial court granted S.M.D.’s motion to dismiss the suit for lack of standing.3

In a single issue, S.L.D. appeals the trial court’s order, arguing, among other things, that section 102.003(a)(9) does not require a person to have exclusive care, control, or possession of the child to have standing. 4 We disagree.

We held in M.J.G. that grandparents lacked standing to intervene in their daughter and son-in-law’s divorce proceedings to seek custody of their grandchildren under section 102.003(a)(9) when, at all times that the children lived with the grandparents, the children’s mother also lived there. 248 S.W.3d at 756–58. The children stayed alone with their grandparents only occasionally or temporarily while their mother was at work. Id. Despite the grandparents’ having performed day-to-day caretaking duties for the children, there was no evidence that the mother did not also care for the children or that she had abdicated her parental duties and responsibilities to the grandparents; therefore, we concluded that the grandparents did not have “actual care, custody, and control” under section 102.003(a)(9). Id. at 758–59; see also In re E.C., No. 02-13-00413-CV, 2014 WL 3891641, at *2 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.)(mem. op.) (holding that grandparents lacked standing under section 102.003(a)(9) because they only had exclusive possession of the child for five and a half months before filing suit). Likewise, in Kelso, we held that the grandparents did not establish standing under section 102.003(a)(9) because they did not show that they had actual care, control, and possession of the child when the record reflected that the child’s mother controlled where the child would stay and for how long and that the grandparents did not have such control. 266 S.W.3d at 591.

The record does not reflect that S.M.D. ever relinquished or abdicated permanent care, control, and possession of S.D. to S.L.D.5 Accordingly, we conclude that S.L.D. failed to establish the actual care, control, and possession necessary to establish standing in this case.6 See E.C., 2014 WL 3891641, at *2; Kelso, 266 S.W.3d at 591; M.J.G., 248 S.W.3d at 756–59. We overrule S.L.D.’s sole issue and affirm the trial court’s judgment.

PER CURIAM PANEL: MCCOY,WALKER and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DELIVERED: December 11, 2014 day-to-day child-raising, but she did not take care of S.D. by herself for any extended period of time. S.L.D. said that she and S.M.D. had had plans for S.L.D. to legally adopt S.D.

S.M.D. testified that there was never a time when she asked S.L.D. to take care of the child because S.M.D. was unable to do so and never a time when she gave S.L.D. the child and let her make important decisions about the child’s life. There is no evidence that S.M.D. failed to care for the child or abdicated her parental duties and responsibilities to S.L.D.