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In re I.A.B.

Court of Appeals of Texas, Fifth District, Dallas

November 10, 2017

IN THE INTEREST OF I.A.B. AND B.N.G., MINOR CHILDREN

         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-56047-2014

          Before Justices Francis, Brown, and Schenck

          MEMORANDUM OPINION

          ADA BROWN JUSTIC

         This 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 proceedings.

         I.B. 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.

         On 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.

         On 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.

         In 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.

         In 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.[1]

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.

         Gant 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 ...


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