Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the 196th District Court Hunt County, Texas
Trial Court Cause No. 84002
Justices Bridges, Fillmore, and Schenck.
J. SCHENCK JUSTICE.
have brought this petition for a writ of mandamus in
connection with several proceedings in which they seek to
adopt a child. Relator, Leslie Hoover, is the child's
maternal aunt. The instant mandamus petition arises from an
order denying relators' claim of standing to intervene in
a district court action more than ninety days after the
district court entered an order terminating the rights of the
child's natural parents. For the reasons that follow, we
deny the petition.
child at issue is in foster care and under supervision of the
Texas Department of Family and Protective Services (TDFPS).
On November 12, 2015, the district court announced its order
terminating the rights of the child parents in an action
brought for that purpose ("the termination case").
Meanwhile, the child's foster parents had instituted an
adoption suit, which was consolidated with the termination
timely filed a "Petition in Intervention in Suit
Affecting Parent-Child Relationship" in the foster
parents' original adoption suit, which was carried into
the termination proceeding as a result of the consolidation.
By their intervention Relators sought sole managing
conservatorship of the child and asserted standing under
Texas Family Code section 102.004(a), which provides that
certain relatives of the child may file suit requesting
managing conservatorship of the child if the 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). TDFPS moved to strike
relators' intervention on August 26, 2016. The court
granted the motion and struck the intervention on November 7,
2016. As the foster parents had non-suited their request for
adoption in the termination case, the order denying the
intervention resulted in a final judgment. Relators did not
appeal that order and do not complain about that order here.
the court struck the intervention in the consolidated cause,
relators filed an independent Petition for Kinship Adoption
on October 21, 2016, which was assigned its own cause number.
TDFPS filed a plea to the jurisdiction in the kinship
adoption suit, arguing that relators' standing was
limited by section 102.006 of the family code. TDFPS argued
that the adoption suit was filed more than 90 days after the
court terminated the parental rights of the biological
parents and, as such, section 102.006(c) could not apply to
give relators the standing necessary to seek a kinship
adoption. The court granted the plea to the jurisdiction on
May 19, 2017 and this proceeding followed.
for Mandamus Relief
entitled to mandamus relief, a relator generally must show
both that the trial court has clearly abused its discretion
and that relator has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to
constitute a clear and prejudicial error of law or if it
clearly fails to correctly analyze or apply the law. In
re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382
(Tex. 2005) (per curiam) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
102.005 of the Texas Family Code details the standing
requirements for a person filing a petition for adoption.
Tex. Fam. Code Ann. § 102.005 (West 2014). Although
section 102.005 provides that an original suit requesting
adoption may be filed by an "adult whom the court
determines to have had substantial past contact with the
child sufficient to warrant standing to do so, " the
next proceeding section, 102.006, goes on to limit standing
in cases where the parent-child relationship has been
terminated by order of the court. In re J.C., 399
S.W.3d 235, 239-40 (Tex. App.-San Antonio 2012, no pet.);
In re M.G., No. 13-09-00305-CV, 2010 WL 2776566, at
*2 (Tex. App.-Corpus Christi 2010, no pet.). Generally,
relatives of terminated parents do not have standing to file
an original suit concerning the child. Tex. Fam. Code Ann.
§ 102.006(a)(3) (West 2014). However, section 102.006(c)
provides the following exception to this bar where:
the adult sibling, grandparent, aunt, or uncle files an
original suit or a suit for modification requesting managing
conservatorship of the child not later than the 90th day
after the date the parent-child relationship between the
child and the parent is terminated in a suit filed by the
Department of Family and ...