Q: How can I appeal a dismissal for lack of standing due to representation issues and lack of evidence in Galveston County, TX?
I wish to appeal the court's decision to dismiss me for lack of standing under the Texas Family Code, as granted in Ursula Gonzales' Motion to Dismiss. The court's decision was based on the evidence and testimony presented during the hearing, documented in the "Associate Judge's Report." However, several issues with representation and procedure have compromised my case:
1. Multiple documents, including the "First Amended Petition in Suit Affecting the Parent-Child Relationship," contained incorrect cause numbers, causing confusion and delays.
2. Misleading statements in the motion for withdrawal of counsel claimed Trey Lavespere found it difficult to communicate with me, which is inaccurate as I provided necessary evidence and information.
3. The motion falsely claimed there were no pending settings or deadlines, despite an upcoming Temporary Order Hearing on March 5, 2025, misleading the court and creating confusion regarding the status of the case.
4. The motion for withdrawal was filed late, on February 28, 2025, at 11:22 PM, leaving me without adequate legal representation at a critical time and jeopardizing my ability to protect my grandson's best interests.
5. Missing documents and exhibits, such as the notarized letter from Jaklynn dated November 24, 2024, were not included in the trial packet, weakening my case presentation and undermining my legal arguments.
6. The writ of attachment was executed without proper consideration of my legal standing and the existing Power of Attorney, resulting in Kentrell being placed with Ursula Gonzales and causing significant distress and disruption to his life and well-being.
7. The absence of a paternity test is a significant oversight, as a DNA paternity test is crucial to establish the biological father of Kentrell. Without it, there is uncertainty about Kentrell's biological parentage, complicating custody and legal proceedings.
8. The email address used for Paul Otis was actually Ursula Gonzales' husband's email, causing confusion in the case and potentially compromising the integrity of the legal process.
9. The address listed for Paul Otis is unknown, leading to difficulties in serving legal documents and ensuring proper communication, causing delays and challenges in maintaining clear and accurate communication throughout the legal proceedings.
10. I have been the primary caregiver for my grandson, Kentrell Rogelio Martinez, providing a stable and nurturing environment for his well-being. There is documentation and testimony to show my involvement in Kentrell's daily care, education, and emotional support, which was not considered by the court.
Given these circumstances, what steps can I take to effectively appeal this decision and address the issues related to my legal representation?
A:
A dismissal for lack of standing is a dismissal for lack of subject matter jurisdiction. As the petitioner, you had had the burden of proof with respect to each fact necessary to establish your standing. Among other things, you needed to establish your biological relationship to the child, who the child's biological parents are, and that the biological parents are dead, consent, or are "unfit" to act as the child's parent(s) for one or more of certain reasons recognized by Texas law.
The appeal will focus on the issue of whether you have standing, so most of the things you list above in your question are not relevant. The exception is the paternity of the father. The evidence in the record will need to show who the father of the child was (whether by paternity test or otherwise).
An appeal will turn on the admissible evidence and arguments presented to the trial court. Most of the items cited above would not be relevant to a determination of standing and, therefore, would not be relevant on appeal.
You will need to file a notice of appeal within 30 days of the date the final judgment dismissing your case was signed. You should contact an attorney experienced in appellate law and family law, ideally in the same appellate district where the custody case was pending. You can expect to pay an appellate lawyer a $25,000 retainer. That attorney will obtain and analyze the Reporter's Record and the Clerk's Record and likely do some legal research before he/she can tell you what the prospects are for winning any appeal. Because it may be strategically important to file certain post-judgment motions, you need to hire an appellate lawyer as soon as possible. These motions also must be filed within 30 days of the date the final judgment was signed.
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