Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF I.A.B. AND B.N.G., MINOR CHILDREN
Appeal from the 296th Judicial District Court Collin County,
Texas Trial Court Cause No. 296-56047-2014
Justices Francis, Brown, and Schenck
appeal involves the adoption of I.B., a female minor child,
by Royce Gant. I.B.'s maternal grandmother, who along
with Gant and I.B.'s Mother is a joint managing
conservator of I.B. brings this appeal to challenge the
adoption order. Grandmother contends Gant needed Mother's
consent to adopt I.B. and because he did not have it, the
trial court erred in granting the adoption. We agree. We
reverse the adoption order and remand for further
was born in October 2010. Mother knows I.B.'s biological
father only as "Omar." Mother does not know where
Omar is, and Omar has had no contact with I.B. Mother began
dating Gant in 2012, and she and I.B. moved in with him in
2013. In October 2013, Gant and Mother had a daughter
together, B.G. Following B.G.'s birth, Mother experienced
postpartum depression and began abusing prescription pills
and other substances. In the summer of 2014, Child Protective
Services got involved after Mother attempted to drive while
under the influence with the girls in the car. CPS issued a
safety plan that required Mother to leave the residence and
required her contact with the children to be supervised.
December 4, 2014, Grandmother filed a suit affecting the
parent-child relationship naming Mother as the respondent and
seeking to be named sole managing conservator of I.B.
Grandmother alleged she was concerned for I.B.'s safety
with Mother. The following day, the trial court appointed
Grandmother sole managing conservator of I.B., and I.B. was
removed from Gant's home. Gant intervened and
successfully moved to set aside the trial court's order.
In his petition, he sought to be appointed sole managing
conservator of I.B. Grandmother answered with a general
denial. At the same time, under a different cause number,
Gant filed a petition to adjudicate parentage of B.G. and
establish himself as her father. These two lawsuits were
consolidated in January 2015.
April 9, 2015, Gant filed a petition to terminate the
parent-child relationship between I.B. and her unknown father
and to adopt I.B. Gant alleged he was eligible to adopt I.B.
because the parent-child relationship will be terminated
between I.B. and the unknown father, Gant will have been a
managing conservator of I.B. for at least six months
preceding the hearing, and Mother, a parent whose rights have
not been terminated, consents to the adoption. Gant asserted
that Mother's written consent would be filed with the
court. It never was. The termination/adoption suit and the
existing case were consolidated in October 2016.
January 2017, the issues of conservatorship were tried before
the court. In February, the trial court signed an order
appointing Gant, Grandmother, and Mother joint managing
conservators of I.B. and B.G. Gant was designated the primary
managing conservator. The court further ordered that
Mother's visitation was to be supervised by Grandmother.
April 2017, the issues of termination and adoption were tried
before the court. Prior to any testimony, Grandmother argued
that I.B. was not eligible for adoption under any of the four
circumstances set out in section 162.001 of the family code,
titled "Who May Adopt and be Adopted." See
Tex. Fam. Code Ann. § 162.001(b) (West Supp. 2016). At
issue here is the following subsection of section 162.001:
(b) A child residing in this state may be adopted if:
. . .
(3) the child is at least two years old, the parent-child
relationship has been terminated with respect to one parent,
the person seeking the adoption has been a managing
conservator or has had actual care, possession, and control
of the child for a period of six months preceding the
adoption or is the child's former stepparent, and the
nonterminated parent consents to the adoption.
Id. § 162.001(b)(3). Grandmother argued that
under this provision, the consent of the nonterminated parent
is required and Gant did not have Mother's consent. Gant
objected to Grandmother's raising this issue because she
did not file an answer to his petition for adoption. He later
argued Grandmother waived her objection because she did not
raise it in a pleading or motion. On the merits, Gant urged a
different reading of the statute, arguing that consent of the
nonterminated parent was required only if the person adopting
is the child's former stepparent. The trial court took
the issue under advisement and trial proceeded.
testified he had not obtained Mother's consent for the
adoption. Mother herself testified that she did not consent
to the adoption. She did not feel it was in I.B.'s best
interest, although an amicus attorney appointed for I.B.
concluded it was in I.B.'s best interest ...