IN the INTEREST OF H.S., a Minor Child

Justice Guzman filed a dissenting opinion.

Justice Blacklock filed a dissenting opinion, in which Justice Johnson, Justice Guzman, and Justice Brown joined.

Justice Guzman, dissenting.

One of lifes greatest blessings is the love of family. Perhaps more than anyone, children benefit from secure and loving relationships with their parents and extended family. Heather is fortunate to have parents and grandparents who actively support, guide, and cherish her. Everyone wants the best for Heather, though they may disagree about what that entails or how to achieve it. One thing is certain, however: the instability, ill-will, and financial burdens of litigation are detrimental to the childs well-being and harmful to familial relationships. Litigation may be necessary when parents have abdicated their responsibilities and allowed someone else to fulfill the committed parental role, but this is not one of those cases.

Heathers grandparents temporarily assisted their daughter in the care of her child, which is a natural and loving thing to do, especially in times of adversity. But it does not rise to the level of actual control in this case because Heathers parents continued to exercise their parental rights, continued to fulfill their parental obligations, and did not perpetuate the grandparents as substitute or functional parents. The record shows that Heather was in day care while both her grandparents and parents worked; after work, Heathers mother cared for her-spending time with her and feeding, bathing, and putting her to bed; Heathers father fulfilled his parental obligations and exercised the rights he was afforded under the possession order; both parents continued to make significant decisions about Heathers healthcare; both parents consulted with and directed the grandparents regarding Heathers care; and both parents remained the primary and ultimate decision-makers about what would be best for their child. Neither the record nor the trial courts fact findings support the conclusion that the grandparents exercised actual control over Heather, but rather were at all times acting under and subject to her parents control. Accordingly, I agree with Justice Blacklock that the grandparents do not have standing under Section 102.003(a)(9) of the Family Code and therefore join his dissent.

In my view, any reading of Section 102.003(a)(9) that treats a non-parents supportive participation in parental decision-making commensurate with actual control over the child is neither reasonable nor consistent with the plain meaning of the term. The right of parents to parent their children-even imperfectly-is perhaps the oldest of the fundamental liberty interests. When parents are fit to act as parents and are engaged as parents should be, the state has no business intruding on the parent-child relationship. Any construction of Section 102.003(a)(9) that affords standing in such circumstances is unreasonable.

I write separately, however, to clarify a procedural point regarding the scope of review and the force of the trial courts findings on appeal. The grandparents suggest it was improper for the trial court to make fact findings on the standing issue, asserting that under Texas Department of Parks & Wildlife v. Miranda , the trial court must view evidence challenging jurisdictional facts in the light most favorable to standing and defer ruling on the jurisdictional matter pending the factfinders disposition of material disputed facts. And because the existence of jurisdiction is a question of law reviewed de novo, the grandparents assert we must likewise take as true all evidence favorable to them and indulge every reasonable inference in their favor. But the grandparents acknowledge that, when the trial court makes findings of fact and conclusions of law, as in this case, appellate courts review the trial courts legal conclusions de novo and fact findings for evidentiary support.

The contention that we must view the evidence here in the light most favorable to standing rather than in the light most favorable to the trial courts fact findings reflects a misunderstanding of Miranda , which involved a jurisdictional issue intertwined with the merits of the case. When jurisdictional issues do not implicate the merits, the trial courts fact findings are afforded weight if supported by sufficient evidence, and that is true whether the fact findings are express or implied.

Miranda is a personal-injury case in which the plaintiff suffered injuries after a tree limb fell on her head while she was engaged in recreational activities at a state park. The defendant asserted sovereign immunity, which the plaintiff could overcome only by establishing gross negligence. Though the plaintiffs pleadings alleged gross negligence, the defendant challenged the existence of that fact with evidence. We held that the trial court was required to consider the parties jurisdictional evidence, but in doing so, we distinguished jurisdictional challenges that implicate the merits, holding that if the evidence raises a fact issue in such cases, the resolution of the matter is for the factfinder, not the court. Such circumstances invoke a summary-judgment type inquiry, which precludes the trial court from making fact findings.

The same is not true, however, when the jurisdictional inquiry is neither intertwined with nor implicates the merits. Because standing is a prerequisite to subject-matter jurisdiction, the trial court must consider disputed evidence necessary to determine standing and may make findings of fact when the standing question does not involve the merits of the dispute, as in this case. We afford those findings, whether express or implied, deference if supported by sufficient evidence. Conclusions of law and application of law to the facts are, however, reviewed de novo.

The Court gives deference to the trial courts fact findings in this case because they are unchallenged and the dissent does so because they are supported by legally sufficient evidence. The court of appeals opined that the material facts were undisputed. Whether we give deference to the trial courts findings or apply the statutory standing framework to the undisputed facts as a matter of law, the result here turns on the proper construction of the statute. Because I agree with the dissents construction, and disagree with the Courts, I respectfully dissent.

See, e.g. , Tex. Fam. Code § 151.001 (Rights and Duties of Parent. (a) A parent of a child has the following rights and duties: (1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child; (2) the duty of care, control, protection, and reasonable discipline of the child; ....).

See also In re M.J.G. , 248 S.W.3d 753, 759 (Tex. App.-Fort Worth 2008, no pet.) (denying standing for grandparents because parents had not abdicated their parental duties and responsibilities to the grandparents); In re K.K.C. , 292 S.W.3d 788, 793 (Tex. App.-Beaumont 2009, no pet.) (denying standing for non-parent because parent did not relinquish to [non-parent] or abdicate her parental rights, duties, and responsibilities); In re Kelso , 266 S.W.3d 586, 590 (Tex. App.-Fort Worth 2008, no pet.) (denying standing for non-parents because the evidence does not show that [mother] voluntarily relinquished permanent care, control, and possession of [child] to the [non-parents] for the six months preceding their filing of the suit).

The Courts definition comes from the Austin Court of Appeals decision in Jasek v. Tex. Dept of Family & Protective Servs. , 348 S.W.3d 523 (Tex. App.-Austin 2011, no pet.). In that case, the childs biological parents rights had been terminated, and the State had legal custody of the child. The child then lived exclusively with a nonparent married couple for nearly two years. When the couple sued alleging standing on the basis of their actual care, control, and possession of the child, the State argued that its ultimate legal control over the child foreclosed the couples standing. The court disagreed, holding that legal control was not a requirement of actual control.

The Court relies heavily on several statements from Jasek about the distinction between legal control and actual control. Some courts of appeals have likewise relied on Jasek s reasoning to support an expansive view of section 102.003(a)(9). But in Jasek the childs parents had left the picture completely. The dispute was between the childs functional (though not legal) parents and the childs legal parent, an incorporeal government entity. In such a case, it makes perfect sense to conclude that the governments legal control of the child says little about who actually controlled the child. But the court in Jasek neither asked nor answered whether non-parents can achieve simultaneous actual control of a child along with natural parents who continue to actively control the childs life. Instead, the court decided that a non-parent couple acting as the only functional parent figures for the child had actual control of the child even though a government entity was legally the childs parent. Jasek was probably correctly decided. But we should not rely on dicta from Jasek about the ability of non-parents to achieve actual control of a child when Jasek did not involve a conflict between parents and non-parents as we normally understand those concepts.

See Tex. Fam. Code § 151.001(a), (d)(1).

Post at 167 (Blacklock, J., dissenting) (No one can fully stand in a parents shoes unless the parent first steps out of those shoes and walks away.).

See Blacks Law Dictionary (10th ed. 2014) (defining control as [t]he power or authority to manage, direct, or oversee); Websters Third New Intl Dictionary 496 (2002) (defining control as power or authority to guide or manage: directing or restraining domination).

Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality).

See City of Richardson v. Oncor Elec. Delivery Co. LLC , 539 S.W.3d 252, 261 (Tex. 2018) (statutory language is afforded its plain, ordinary, and reasonable meaning).

133 S.W.3d 217, 226 (Tex. 2004).

Cf. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002).

Cf. id. (When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied.).

133 S.W.3d at 220.

Id. at 221.

Id.

Id. at 223, 226-27 (citing with approval federal court decisions holding that, if a jurisdictional question is inextricably entwined with the cases merits, resolution is for the factfinder).

Id. at 225-26.

See, e.g. , IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W.2d 440, 441 (Tex. 1997) (findings of fact and legal conclusions are neither necessary nor proper in a summary-judgment proceeding).

Sneed v. Webre , 465 S.W.3d 169, 179 (Tex. 2015) (standing is a constitutional prerequisite to maintaining suit).

Perry v. Del Rio , 66 S.W.3d 239, 257 (Tex. 2001).

Ante at 155 (When the trial court issues findings of fact, as it did here, we defer to those unchallenged findings that are supported by some evidence.).

Post at 167 (Blacklock, J., dissenting) (We should review these findings of fact under a deferential legal sufficiency standard.).

No. 02-15-00303-CV, 552 S.W.3d 282, 285, 2016 WL 4040497, at *1 (Tex. App.-Fort Worth July 28, 2016) (mem. op.) (The facts are straightforward and undisputed.).

See Marsh USA Inc. v. Cook , 354 S.W.3d 764, 768 (Tex. 2011) (application of the law to undisputed facts is reviewed de novo).

James D. Blacklock Justice, Dissenting.

Today the Court holds that nearly anyone who has played an unusual and significant parent-like role in a childs life may sue for legal rights of visitation and control over the child even if the childs parents remain actively involved in the childs life and oppose the non-parents wishes. According to the Court, section 102.003(a)(9) of the Family Code dictates this outcome. I respectfully disagree.

Section 102.003(a)(9) grants standing to file a suit affecting the parent-child relationship to non-parents who have had actual care, control, and possession of the child for at least six months. The court of appeals essentially reasoned that actual care, control, and possession of a child belongs presumptively to the childs parents. Thus, for a non-parent to achieve the actual care, control, and possession required for standing, the childs parents must first give up actual care, control, and possession. We should adopt this simple formulation, primarily because it comports with the statutes text but also because it avoids potential encroachment on the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). Even if the choice were between two equally persuasive readings of section 102.003(a)(9) -and it is not-I would adopt the reading that avoids burdening parents unalienable right to raise their children as they see fit, rather than the reading that follows modern trends in family law.

The Court instead condenses the statutes three-pronged requirement of actual care, control, and possession into one question: Did the non-parent play[ ] an unusual and significant parent-like role in a childs life? Ante at 162. In the Courts view, this parent-like role may be played simultaneously by parents and by multiple non-parents alike. As a matter of statutory interpretation, the principal defect in the Courts approach is its failure to afford independent meaning to the statutes actual control requirement apart from the control already entailed in actual care and actual possession. The result is that parents who remain in control of their childrens lives can be forced into visitation and custody fights over their own children by any non-parent whose relationship with the child triggers the Courts malleable parent-like role standard. The Court rightly recognizes that non-parents who care for and reside with a child may often develop a special bond with the child. Heathers grandparents surely have such a bond with Heather, and I join Justice Guzman in commending them for their admirable willingness to help provide for Heather during a difficult time in her parents lives. But Texas law recognizes the unique, exclusive, and constitutionally protected relationship between parents and their children. One way it does so is through section 102.003(a)(9), which limits non-parent standing in custody and visitation cases to situations in which parents no longer exercise their unique and exclusive right of actual control over their child. Only then can a non-parent take up the parent-like role of actual control required for standing. No one can fully stand in a parents shoes unless the parent first steps out of those shoes and walks away.

In the case before us, the childs Mother and Father sent their daughter Heather to live with her Grandparents for a temporary period. After an evidentiary hearing, the trial court found that although Grandparents were Heathers primary caregivers during this time, both Mother and Father remained actively involved in their daughters life, made medical decisions for her, and never intended to relinquish control over her upbringing to her Grandparents. I agree with the trial court and the court of appeals that the childs parents, not her Grandparents, retained actual control over her throughout the time in question. Because Grandparents did not have actual care, control, and possession of the child for the required six-month period, they failed to satisfy section 102.003(a)(9)s standing requirements. We should affirm the court of appeals judgment dismissing the case.

I. Factual Background

The trial court entered detailed findings of fact supporting its conclusion that the childs parents remained sufficiently involved in her life to exclude the possibility that anyone else exercised actual control over her. We should review these findings of fact under a deferential legal sufficiency standard. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002). The Courts recitation of the facts does not track the trial courts findings. We are obliged to afford the trial courts fact findings the same force and dignity as a jurys verdict upon questions. Anderson v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991). Instead, the Court engages in its own summary of the testimony, some of which comports with the trial courts factual findings and some of which does not. This case turns primarily on a legal question of statutory construction, and presumably the Court would reach the same conclusion on the meaning of section 102.003(a)(9) even if it had explicitly deferred to the trial courts fact-findings. But in any event, re-stating the facts as the trial court found them provides the best basis for understanding the nature of the case before us. The trial court found as follows:

Mother and Heather lived with Grandparents for several months before Mother moved out to begin a temporary stay at a rehab facility called Sober Living, where Mother could address her alcohol problem. Mother, Father, and Grandparents held a family meeting and reached an agreement regarding the terms of Heathers stay at Grandparents house. Mothers absence was intended to be, and actually was, temporary. The living arrangement was a temporary solution until Mother was able to stabilize in her recovery. After her stay at Sober Living, Mother wanted Heather to live with her and for Father to continue co-parenting Heather.

During the time Heather lived with Grandparents, Mother continued to make certain decisions for Heather, including decisions regarding medical and wellness care. Mother gave Grandmother permission to take Heather to the doctor for specific doctor office visits. Mother signed a consent form allowing Grandparents to seek emergency medical care for Heather. Father also gave his authorization for Heather to receive medical care in case of emergency. On more than one occasion, a healthcare provider contacted Father for permission to provide medical care to Heather.

Grandmother kept Mother fully informed of Heathers activities. Grandmother consulted with and sought input from Mother and Father on decisions that needed to be made for Heather. Mother and Father both provided Grandmother with input regarding caring for Heather.

Mother left Sober Living in the evenings to visit Heather at Grandparents house, where Mother would have dinner with Heather, bathe her, spend time with her, and put her to bed. Mother kept in constant contact with Heather while at Sober Living and would sometimes pick Heather up from daycare. Father often spent time with Heather too. Father kept her virtually every other weekend and would often see her more frequently. Both Mother and Father wanted Heather to spend even more time with Father. Even though Father and Mother never married, they had always done things together with Heather. Father is a fit father and has always been involved in Heathers life.

II. Text of Section 102.003(a)(9)

Section 102.003 of the Family Code provides:

General Standing to File Suit. (a) An original suit may be filed at any time by: ... (9) 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; .... (b) In computing the time necessary for standing under Subsection[ ] (a)(9) ... the court may not require that the time be continuous and uninterrupted but shall consider the childs principal residence during the relevant time preceding the date of commencement of the suit.

The outcome of this case depends on the meaning of these words. As always, we must presume the legislature chose a statutes language with care. Hallmark Mktg. Co. v. Hegar , 488 S.W.3d 795, 798 (Tex. 2016). This presumption of careful choice includes a presumption that each word [was] chosen for a purpose. TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011). Every word and phrase should be given meaning, and we must not omit or gloss over verbiage in an attempt to reclaim clarity. Centerpoint Builders GP, LLC v. Trussway Ltd. , 496 S.W.3d 33, 36 (Tex. 2016) ; see also BankDirect Capital Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 86 (Tex. 2017) (Separation of powers demands that judge-interpreters be sticklers.). If possible, no words should be rendered meaningless or treated as surplusage. Kallinen v. City of Houston , 462 S.W.3d 25, 28 (Tex. 2015).

The dispute is over the statutory phrase actual care, control, and possession.

Words and phrases that are not defined by statute and that have not acquired a special or technical meaning are typically given their plain or common meaning. In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015). Here, the statute does not define its terms, and they have not acquired a special or technical meaning. Actual means [e]xisting in fact; real, as opposed to constructive. Actual , BLACKS LAW DICTIONARY (10th ed. 2014) [hereinafter BLACKS]. Here, the term modifies each of care, control, and possession. Thus, a person asserting standing under section 102.003(a)(9) must show actual care, actual control, and actual possession. Jasek v. Tex. Dept of Family & Protective Servs. , 348 S.W.3d 523, 532 (Tex. App.-Austin 2011, no pet.).

Care means the provision of physical or psychological comfort to another, Care , BLACKS , and concern; regard ... watchfulness ... oversight, or management, implying responsibility for safety, Care , WEBSTERS NEW INTL DICTIONARY (2d ed. 1960) [hereinafter WEBSTERS ]. Control means [t]he direct or indirect power to govern the management and policies of a person or entity ... the power or authority to manage, direct, or oversee. Control , BLACKS . It means [t]he act or fact of controlling; power or authority to control; directing or restraining domination; as under parental control . Control , WEBSTERS . It is the act or power of ... command. Control , THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (2d ed. 1987) [hereinafter RANDOM HOUSE ]. Possession means the exercise of dominion over ... something, Possession , BLACKS , and actual holding, Possession , RANDOM HOUSE .

This case comes down to what actual control means and whether Grandparents had it. Mother and Father do not dispute that Grandparents had actual possession of Heather. As for actual care, Grandparents primary daily responsibility for the supervision, discipline, and safety of Heather supports the conclusion that they had actual care over her, though the trial court disagreed. Since actual possession, actual care, and actual control are all required for standing, we need not decide whether Grandparents had actual care of Heather if they did not have actual control.

Because every word in the statute must have meaning and no words should be treated as surplusage, the court of appeals correctly observed that control in section 102.003(a)(9) means something more than the control implicit in having care and possession of the child. In re H.S. , No. 02-15-00303-CV, 552 S.W.3d 282, 288, 2016 WL 4040497, at *4 (Tex. App.-Fort Worth July 28, 2016, pet. granted) (mem. op.) (quoting In re K.K.C. , 292 S.W.3d 788, 792 (Tex. App.-Beaumont 2009, no pet.) ). The Courts reasoning, however, fails to give meaningful effect to the statutes actual control requirement beyond the elements of control already included in actual possession and actual care. Control cannot mean providing daily supervision, clothing, food, transportation, and the like. If it did, then control would be the same thing as care, rendering one statutory term or the other superfluous. And if control were merely the physical holding of the child, then control would be the same thing as possession, again rendering one term or the other superfluous. Instead, control must mean something distinct from care and possession.

In the context of child-rearing, control of a child entails the power and authority to make important decisions about the childs life. As the definitions cited above indicate, to have control of a child is to govern, oversee, and direct the child. This means more than day-to-day or hour-to-hour supervision and discipline-and certainly more than deciding when [a child] gets up and goes to bed, how much television she watches, [and] whether she gets dessert. Ante at 158. It means responsibility for the important choices that must be made for the child-choices about where she will live, her medical care, her education, and her future. Such control is by its nature, and by law, the exclusive right and duty of parents in the first instance. When important decisions must be made for a child, someone bears ultimate responsibility for them no matter how many other caregivers may be involved in the childs life or consulted on the decision. Unless the childs parents refuse or shirk this responsibility, it is theirs both in law and in fact.

Parents often delegate matters of day-to-day care and possession to others, such as schools or family members. Doing so does not reduce the parents control over their child or share parent-like control with others. To the contrary, determining where a child will be and who will care for her is a quintessential exercise of parents exclusive control over their children. Deciding to share possession and care of a child with others is an exercise of the parents control over the child, not a sharing of parental control or a relinquishment of it. Even if physically absent, a parent does not hand over control of her child merely by handing over physical possession and care. Again, if that were the case, control would have no role to play in section 102.003(a)(9).

Citing Coons-Andersen v. Andersen , 104 S.W.3d 630, 636 (Tex. App.-Dallas 2003, no pet.), the Court agrees with the notion that section 102.003(a)(9) is in harmony with the common law concept of in loco parentis . Ante at 157. But under the classical understanding of in loco parentis , the parent retains ultimate control of the child while consciously delegating possession and care of a child to another, such as a family member or boarding school. Such intentional delegation of a portion of parental authority is a reflection, not a reduction, of parents exclusive control over their children. 1 WILLIAM BLACKSTONE, COMMENTARIES *453-54 ([The father] may also delegate part of his parental authority to someone who is then in loco parentis , and has such a portion of the power of the parent committed to his charge.).

The Court suggests that the parents ultimate legal responsibility for the child is irrelevant to the inquiry because the statute requires actual control, not legal control or constructive control. Ante at 157. This distinction between legal control and actual control matters, but the Court takes it too far. That Mother and Father retained their legal rights as Heathers parents does not by itself foreclose Grandparents claim to actual control of Heather. But the Court mistakenly treats legal control and actual control like opposites, when in fact they go hand in hand nearly all the time. See Marino v. Lenoir , 526 S.W.3d 403, 409 (Tex. 2017) ([Legal] is not ordinarily used as the opposite of, or in contrast to, actual.). Parents exclusive, ultimate legal control over their children is no mere lawyerly construct. It is an actual fact of life that almost always dictates who actually controls the child. Sometimes, usually in very difficult circumstances, legal and actual control are severed. When a parent leaves the picture, relinquishing the role of ultimate decision-maker for the child, the parent does not automatically lose legal control of the child. But the parent does forfeit actual, factual control to whoever steps into the parents shoes as the functional equivalent of the childs parent. The person who steps into the absent parents shoes does not have all the legal rights of a parent without court action, but he has actual control of the child for purposes of section 102.003(a)(9) because he is functionally the childs ultimate decision-maker. The court of appeals correctly discerned that the actual control required by section 102.003(a)(9) remains fused with the parents legal control of the child unless the parents relinquish their ultimate decision-making responsibility for the child to someone else. In re H.S. , 552 S.W.3d at 289-91, 2016 WL 4040497, at *5.

Adopting this understanding of control as distinct from care and possession does not add extra words or requirements to the statute. See Lee v. City of Houston , 807 S.W.2d 290, 294-95 (Tex. 1991) (A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute.). Control must mean something more than care or possession. Understanding actual control as the factual responsibility to make the kind of decisions normally associated with legal control of the child gives actual control independent meaning based on its commonly understood definition, as we should do. This does not add a requirement to the statute. It gives life to the actual control requirement already contained in the statutory text. Actual control and legal control usually exist coextensively in the parents. When the parents relinquish their responsibilities, actual and legal control diverge, and someone else takes up actual control of the child even though the absent parents retain their legal status. Section 102.003(a)(9) grants that person standing, so long as the statutes other requirements are satisfied.

To illustrate the role control plays in section 102.003(a)(9), consider two scenarios in which a single Father has a Son. In the first, Father goes to work on an offshore oil rig for seven months, intending to return and resume his daily life with Son. He leaves Son with a close friend. Father and Son talk on the phone most nights, and the caretaker regularly consults with Father regarding Sons schoolwork, discipline, and extracurricular activities. Father also signs off on most medical treatment for Son. After six months, Fathers friend asserts standing under section 102.003(a)(9) to sue for permanent possession of Son. But the friend lacks standing, because even though he had care and possession of Son, he did not have control ; Father retained control. In the second scenario, Father again goes to work on an offshore oil rig for seven months and leaves Son with a close friend. This time, however, Father absconds from the rig and disappears with a girlfriend. No one hears from Father for over six months. The caretaking friend asserts standing under section 102.003(a)(9) to sue for custody of Son. In this scenario, there is little doubt the friend has statutory standing. Father functionally relinquished his control of Son to the friend and abdicated his parental control. Here the friend, not the Father, has actual control of Son.

The Court disagrees with this interpretation of actual control, but it recognizes that it should give effect to the statutory requirement of control beyond what is already entailed in care and possession. To this end, the Court offers a definition of control: exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. Ante at 160. The Courts emphasis on day-to-day matters blurs the statutory distinction between daily care and ultimate control. But the Court fails to apply even its own flawed definition of control. What is the nature of the guidance, governance, and direction typically exercised by parents with their children? The Court does not say. As explained above, one defining characteristic of the guidance, governance, and direction typically exercised by parents with their children is its exclusivity. The parent-child relationship is unique, both factually and legally. There may be abundant important opportunities for non-parents to direct and guide the child, but that does not make them the functional equivalent of the childs parents. As long as the parents remain actively involved in the childs life, there is little room for anyone else to exercise the control typically exercised by parents because the parents themselves already occupy that unique and special role.

The Court seems to acknowledge that its understanding of actual control has nothing to do with the ultimate decision-making authority typically exercised by parents with their children. Instead, the Court limits its definition of control to the day-to-day matters of parenting. If all parental control means is deciding when [a child] gets up and goes to bed, how much television she watches, whether she gets dessert, [and] when she needs to go to the doctor, then I can discern no distinction between care and control. Ante at 158. The Court apparently has the same trouble, which may be why it ultimately condenses the statutes three distinct requirements into a single parent-like role requirement. Ante at 163. The correct approach is to give all three textual requirements-care, control, and possession-independent meaning by recognizing that the true extent of parents control over their children extends well beyond the day-to-day matters of childcare to which the Court constricts its analysis.

Turning to the facts of this case, the Court points to nothing about Heathers relationship with her Grandparents that amounts to the guidance, governance, and direction typically exercised by parents with their children. Rather than identify particular facts that establish each of the three required elements for standing-care, control, and possession-the Court settles for an amalgam of the three by asking whether Grandparents played a parent-like role in Heathers life. Ante at 160. The Court notes several facts about the relationship that supposedly demonstrate Grandparents parent-like role:

(1) Heathers principal residence was Grandparents home;

(2) Grandparents were her primary caregivers;

(3) Grandparents paid for her food, clothes, and daycare, and managed her day-to-day activities;

(4) Grandparents took her to urgent care when necessary and took her to the doctor for checkups, though Mother made the check-up appointments; and

(5) Grandparents kept Mother and Father reasonably informed about Heathers activities and medical needs and involved them in decisions about her.

Id. The Court concludes from these facts that Grandparents played a parent-like role in Heathers life. Id. That conclusion fails to appreciate the unique and exclusive nature of the parent-child relationship. But leaving that aside, the statute does not require a parent-like role. It requires actual care, possession, and control. Of the five facts identified by the Court, the first concerns possession, and the next two concern care. The fifth actually undercuts the Courts view that Grandparents exercised control over Heather similar to that typically exercised by parents with their children. Parents typically need not keep anyone else reasonably informed about their childrens activities or involve others in decisions about them. Seeking the approval of another adult for a childs medical care and regularly reporting to that person about the childs activities-as Grandparents did here-are not signs of parent-like control. They are signs of its absence. They are signs that control actually lies with the one receiving the reports about the child, not the one making them.

The fourth fact listed above is the only one that potentially demonstrates Grandparents control. But the trial courts several fact-findings concerning Heathers medical care establish that Grandparents did not control this important element of Heathers life with anything resembling the control typically exercised by parents. The trial court found that [Mother] gave [Grandmother] permission to take [Heather] to the doctor, that [Mother] continued to make certain decisions for [Heather], including certain medical and wellness care, that [Mother] gave [Grandmother] authorization to obtain certain medical treatment for [Heather] but that this authorization was only for specific doctor office visits or emergencies, and that [Grandparents] did not get any type of surgery for [Heather] without [Mother] or [Father]s consent. These fact-findings do not support the conclusion that Grandparents involvement in Heathers medical care resembled the typical role of parents. Quite to the contrary, Grandparents had to regularly seek and obtain the permission of other adults before obtaining medical care for Heather. Nothing about that arrangement resembles the exclusive control over such decisions typically exercised by parents.

Nor do any of the trial courts other fact-findings support the conclusion that Grandparents control over Heather was similar to that typically exercised by parents with their children. Throughout Heathers stay at her Grandparents house, Father and Mother continued to exercise their ultimate power and authority as parents to govern their child. Heathers stay with her Grandparents resulted from an agreement that Father, Mother, and Grandparents reached during a family meeting. Everyone contemplated that the arrangement would be temporary. Mother intended for Heather to return to her upon the completion of her rehabilitation. Mother made many decisions for Heather, including many regarding medical care. Mother and Father both gave their consent for Heather to receive emergency medical care. Healthcare providers continued contacting Father for authorization to render aid to Heather. Grandparents regularly sought input from both Mother and Father regarding decisions that needed to be made for Heather. Heather stayed at Fathers house every other weekend, and he saw her more often than that. And in the evenings Mother would go to Grandparents house and have dinner with Heather, bathe her, spend time with her, and put her to bed.

There is no question that Mother and Father delegated a great deal of their parental responsibilities to Heathers Grandparents. But even applying the Courts definition of control, these facts cannot support the conclusion that Grandparents exercised the guidance, governance, and direction typically exercised by parents with their children. Instead, the findings of fact support the view that Mother and Fathers intentional, thoughtful, temporary delegation of some of their rights to physical possession and care of Heather demonstrated the parents control over Heather-not control by others.

I would affirm the court of appeals decision that standing under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the childs parent ... has abdicated his or her own ... control ... over the child to the nonparent. In re H.S. , 552 S.W.3d at 289, 2016 WL 4040497, at *5. Here, there was no such evidence. Grandparents therefore lacked standing, and the trial court correctly dismissed the case.

III. The Constitutional Implications

We should affirm the court of appeals decision based solely on the text of section 102.003(a)(9). But there is yet another reason to favor an interpretation of the statute under which parents who have not relinquished their responsibilities cannot be subjected to courtroom custody fights by non-parents claiming parent-like status. Such an interpretation avoids the difficult constitutional questions raised by expanding the ability of non-parents to demand that a judge, rather than a childs fit parents, make decisions about the childs upbringing. See HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Bd. , 235 S.W.3d 627, 658 (Tex. 2007) ([W]e must construe statutes to avoid constitutional problems when we can ....); United States v. Albertini , 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (Statutes should be construed to avoid constitutional questions ....).

The U.S. Supreme Court has on many occasions held that the U.S. Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel , 530 U.S. at 66, 120 S.Ct. 2054 ; see also Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the liberty specially protected by the Due Process Clause includes the right[ ] ... to direct the education and upbringing of ones children ....) (citations omitted); Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing [t]he fundamental liberty interest of natural parents in the care, custody, and management of their child); Parham v. J.R. , 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course ....); Quilloin v. Walcott , 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.); Wisconsin v. Yoder , 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.); Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements. ) (quoting Kovacs v. Cooper , 336 U.S. 77, 95, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring) ).

We generally follow the decisions of the U.S. Supreme Court on matters of federal constitutional law. See In re Morgan Stanley & Co. , 293 S.W.3d 182, 189 (Tex. 2009). We previously applied Troxel on ten occasions, including to reverse an order granting visitation rights to grandparents over the objection of the childs mother. In re Mays-Hooper , 189 S.W.3d 777 (Tex. 2006). The existence of parents fundamental liberty interest in the care, custody, and control of their children is well-established in the Supreme Courts decisions. But the Supreme Court has not described the contours of the right with clarity. In Troxel , a case that deeply divided the Supreme Court, the plurality opinion recognized this lack of clarity but declined to ameliorate it: [T]he constitutionality of any standard for awarding visitation turns on the specific manner in which the standard is applied and ... the constitutional protections in this area are best elaborated with care. Troxel , 530 U.S. at 73, 120 S.Ct. 2054 (quoting id. at 101, 120 S.Ct. 2054 (Kennedy, J., dissenting) ).

While the Supreme Court has broadly recognized the constitutional interest of parents in the care, custody, and control of their children, the Court has not articulated a standard of review by which to judge the constitutionality of infringements upon parents rights. Given the lack of precision in the Courts decisions, it is difficult to state a precedent-based rule distinguishing impermissible government interference with parental prerogatives from permissible government action to protect child welfare. Troxel was a grandparent-access case, like the case before us. The Supreme Court held that special weight must be afforded to a fit parents decision whether an intergenerational relationship would be beneficial to the child.

Id. at 70, 120 S.Ct. 2054. But how much special weight? Under what circumstances can the parents wishes be second-guessed by the government? Existing precedent does not provide clear answers.

One potential answer was proffered by Justice Thomas in his concurrence in Troxel : I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest-to say nothing of a compelling one-in second-guessing a fit parents decision regarding visitation with third parties. Id. at 80, 120 S.Ct. 2054. Another potential answer is that proffered by the court of appeals, which interpreted Troxel to flatly prohibit nonparent standing while a fit parent is appropriately exercising his or her own parental rights. In re H.S. , 552 S.W.3d at 290, 2016 WL 4040497, at *5.

Yet another approach is that taken by the Court today. The Courts discussion of the constitutional issues assumes that the Troxel plurality opinion defines the outer limits of the Constitutions protections for parents in custody cases. The Court brushes aside the constitutional concerns raised by Mother, Father, and the court of appeals because the Washington statute that Troxel invalidated allowed more expansive non-parent standing than Texass statute. That is true. I agree with the Court that the reasoning of the plurality opinion in Troxel does not compel the conclusion that section 102.003(a)(9) as the Court interprets it is unconstitutional. The court of appeals view that any judicial interference with the decisions of fit parents violates Troxel probably stretches Troxel beyond the pluralitys reasoning. But saying a statute does not run afoul of Troxel is not the same thing as saying the statute is constitutional. As a matter of first impression, the rule announced by the court of appeals-that fit parents cannot be haled into court by non-parents to defend their decisions about the upbringing of their children-is certainly one plausible consequence of the Supreme Courts recognition of a fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel does not tell us exactly where the line is between constitutional and unconstitutional government interference with the rights of fit parents. In this case and thousands of others like it in our family courts, parents fundamental rights are at stake. We should not assume, as the Court does, that placing additional burdens on those rights has no constitutional significance just because the Troxel plurality opinion does not prohibit it.

The Court downplays the significance of this case because the issue before us is who has standing to bring a suit affecting the parent-child relationship, not the merits of whether the suit should succeed. But when the constitutional concern is preservation of the parents right to be the ultimate decision-makers for their child, the distinction between standing and the merits evaporates. Once a custody or visitation case gets through the courthouse doors, a judge or group of judges-not the parents-will ultimately decide whether to uphold or reverse the parents decisions about their childs future. Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required. Troxel , 530 U.S. at 101, 120 S.Ct. 2054 (Kennedy, J., dissenting). As a majority of the Supreme Court recognized in Troxel , the burden of litigating a domestic relations proceeding can itself be so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the childs welfare becomes implicated. Troxel , 530 U.S. at 75, 120 S.Ct. 2054 (quoting id. at 101, 120 S.Ct. 2054 (Kennedy, J., dissenting) ). No matter the presumptions or legal standards applied at the merits stage, giving a judge the power to review a parents decisions about the extent to which non-parents should be involved in a childs life undermines the parents role as the ultimate decision-makers for their child. This is unquestionably necessary in some cases for the protection of children whose parents would harm them. But for fit parents, true control of their children is an illusion if the courts really get to make the final call.

The Court correctly points out that the Family Code puts a thumb on the scale for parents at the merits stage by establishing a presumption that appointing the parents as managing conservators is in the childs best interest unless the appointment would significantly impair the childs physical health or emotional development. TEX. FAM. CODE § 153.131(a). Although this presumption affords important protection to parents, it does not change the fact that once standing is established, the final decision about the childs future will be made by a judge or jury, not the childs parents. Under the U.S. Supreme Courts decisions, such government usurpation of parental authority raises serious constitutional questions. We could have and should have avoided those questions by faithfully enforcing the actual control requirement of the text of section 102.003(a)(9).

* * *

The U.S. Supreme Courts decision to recognize the constitutional rights of parents through the questionable mechanism of substantive due process attracts its share of second-guesses. See, e.g. , Troxel , 530 U.S. at 80, 120 S.Ct. 2054 (Thomas, J., concurring) (suggesting that the Privileges and Immunities Clause may be the more appropriate place to look); Daniel E. White, People v. Bennett: Analytic Approaches to Recognizing A Fundamental Parental Right Under the Ninth Amendment , 1996 B.Y.U. L. REV. 183, 206-59 (1996) (suggesting the Ninth Amendments acknowledgment of unenumerated rights ... retained by the people protects parental rights); In re J.P. , 648 P.2d 1364, 1373 (Utah 1982) (noting that [t]he rights inherent in family relationships-husband-wife, parent-child, and sibling-are the most obvious examples of rights retained by the people under the Ninth Amendment). Yet even the late Justice Scalia, perhaps the Courts most consistent and vociferous critic of the judicial enforcement of rights not specifically enumerated in the Constitution, concluded that a right of parents to direct the upbringing of their children is among the unalienable Rights with which the Declaration of Independence proclaims all men ... are endowed by their Creator. Troxel , 530 U.S. at 91, 120 S.Ct. 2054 (Scalia, J., dissenting). Justice Scalia also viewed parents rights as among the othe[r] [rights] retained by the people which the Ninth Amendment says the Constitutions enumeration of rights shall not be construed to deny or disparage. Id. (reasoning that the Constitutions refusal to deny or disparage other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges list against laws duly enacted by the people).

I do not suggest that we should ever twist the words of a statute to accommodate constitutional concerns. Far from it. The best reading of the text of section 102.003(a)(9) requires a childs parents to relinquish or shirk their actual control of the child before a non-parent may assert the actual control required for standing. The Court need not proceed any further to resolve this case. But even if the interpretation of section 102.003(a)(9) adopted by the Court today were equally persuasive-that is, even if the statutes text supported two equally plausible readings-we should prefer the interpretation that avoids constitutional questions like those at stake here. We should likewise prefer the interpretation, as between two equally plausible interpretations, that better accommodates the unalienable rights proclaimed by the Declaration of Independence and retained by the people under the Ninth Amendment. In this case, the interpretation that avoids burdening parents rights is also the textually superior interpretation, which makes the correct outcome doubly clear. Because the Court concludes otherwise, I respectfully dissent.

See, e.g. , Centers for Disease Control and Preventions National Center for Injury Prevention and Control, Essentials for Childhood: Steps to Create Safe, Stable, Nurturing Relationships & Environments , (Aug. 2014) (Safety, stability, and nurturing are three critical qualities of relationships that make a difference for children as they grow and develop.), https://www.cdc.gov/violenceprevention/pdf/essentials_for_childhood_framework.pdf; John Oates, editor, Early Childhood in Focus 1, Attachment Relationships: Quality of Care for Young Children (The Open Univ. 2007) (exploring attachment relationships, which offer children physical and emotional security and consistent care and attention), http://oro.open.ac.uk/10292/1/ECiF1as_BvLFweb.pdf.

See Katherine K. Baker, Quacking Like a Duck? Functional Parenthood Doctrine & Same-Sex Parents , 92 Chi. Kent L. Rev. 135, 167 (2017) ([L]itigation, particularly litigation over children, imposes tremendous emotional and financial costs for no good reason.); Gregory Firestone & Janet Weinstein, In the Best Interests of Children , 42 Fam. Ct. Rev. 203, 203-07 (2004) (outlining the adversarial systems harmful effects on children).

Cf. Holley v. Adams , 544 S.W.2d 367, 370 (Tex. 1976) (parent-child relationship is of constitutional dimension and encompasses the right of parents to surround their children with proper influences).