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In re E.C.

Court of Appeals of Texas, Fifth District, Dallas

December 20, 2017

IN THE INTEREST OF E.C., A CHILD

         On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. 16-00152-X-305

          Before Chief Justice Wright and Justices Francis and Stoddart

          MEMORANDUM OPINION

          CAROLYN WRIGHT, CHIEF JUSTICE

         Appellants (Foster Parents) appeal the trial court's order dismissing their petition in intervention in a suit involving the parent-child relationship. In two issues, Foster Parents generally contend the trial court abused its discretion in dismissing their intervention. For the following reasons, we affirm the trial court's order.

         On February 15, 2016, after Mother's arrest for possession of drugs, the Texas Department of Family and Protective Services (the Department) took possession of her three-year-old son, E.C. The following day, the Department placed E.C. with Foster Parents and filed suit for E.C.'s protection, for conservatorship, and for termination of Mother's rights. The Department also sought to terminate the parental rights of E.C.'s biological father, who it alleged was unknown. The trial court subsequently appointed the Department as E.C.'s temporary managing conservator and E.C.'s placement with Foster Parents continued.

         In late 2016, the Department notified Foster Parents it intended to place E.C. with family members, "the S's", who lived in Florida. Foster Parents then sought to intervene in the suit affecting parent child relationship. At that time, they asserted they had standing to intervene pursuant to 102.004(b) of the Texas Family Code, which governs the circumstances under which a trial court may grant leave to a grandparent or "other person" to intervene in a pending suit affecting the parent-child relationship. See Tex. Fam. Code Ann. § 102.004(b) (West 2017).

         On February 17, 2017, Foster Parents amended their petition and abandoned their claim of standing under section 102.004(b) and asserted they had standing to intervene because they had been E.C.'s foster parents for one year and thus had general standing to bring an original suit affecting the parent-child relationship.[1] See id. at. § 102.003(a)(12). In their amended intervention, Foster Parents also requested the trial court to terminate Mother's parental rights, but they did not seek to terminate the rights of E.C.'s biological father.

         By the time of trial, the Department and Mother agreed the S's would be appointed E.C.'s permanent managing conservators and that Mother would be appointed as possessory conservator. Thus, the Department was no longer pursuing its suit for termination. On the morning of trial, Mother asserted Foster Parents could not "move forward" with their intervention because they had failed to request that the rights of E.C.'s biological father be terminated. Foster Parents responded they had intended to "piggy back" on the Department's pleadings against E.C.'s unknown biological father and, if the Department was no longer requesting that relief, Foster Parents would seek to terminate the rights of the biological father at a later date. The trial court informed Foster Parents they could not litigate a suit involving the parent-child relationship by "piecemeal." Foster Parents then requested the trial court to grant them leave to amend their pleadings to request that E.C.'s unknown biological father's parental rights be terminated. The trial court denied their request and dismissed their intervention. As a result, Foster Parents did not participate at the trial that followed.

         At the conclusion of the trial, the trial court appointed the S's as E.C.'s permanent joint managing conservators and Mother as possessory conservator. The trial court's Final Order also included a written order dismissing Foster Parents from the suit. This appeal followed.

         In their first issue, Foster Parents assert the trial court abused its discretion by dismissing their intervention because the trial court should not have required them to terminate the parental rights of E.C.'s unknown biological father at the same time as proceeding with the termination of Mother's parental rights for the adoption of E.C. In their second issue, Foster Parents assert that, even if their pleadings were defective, the trial court abused its discretion in dismissing their intervention because (1) Mother failed to specially except to their pleadings prior to trial; (2) they were not given an opportunity to amend; and (3) Mother lacked standing to complain of any deficiencies related to E.C.'s biological father.

         We begin by noting that Foster Parents challenge the trial court's order as though the trial court dismissed an original suit affecting the parent-child relationship based on a pleading deficiency. However, Foster Parents did not bring an original suit; they intervened in the Department's pending suit. By dismissing the intervention, the trial court effectively struck the intervention and dismissed the Foster Parents as parties to the Department's suit. See Gregory B. Baten Tr. v. Branch Banking & Tr. Co., 05-14-00133-CV, 2015 WL 543794, at *3 (Tex. App.-Dallas Feb. 10, 2015, no pet.) (an order striking an intervention completely disposes of the intervenors' interest in the suit and dismisses the intervenor from the suit); cf. Seale v. Tex. Dep't of Family & Protective Servs., No. 01-10-00440-CV, 2011 WL 765 886, at *3 (Tex. App.-Houston [1st. Dist.] Mar. 3, 2011, no pet.) (objection to intervenor's pleadings was in substance a motion to strike). Thus, Foster Parents must show the trial court abused its discretion in striking their petition in intervention. See Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex.1982) ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."). Before reaching that issue, we first consider the threshold issue of whether Foster Parents had standing to intervene in the Department's suit. See In re M.P.B., 257 S.W.3d 804, 807 (Tex. App.-Dallas 2008, no pet.).

         Applicable Law

         Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. In re M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.- Dallas 2009, pet. denied). Thus, it may be raised for the first time on appeal by the parties or by the court. Texas Ass's of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Whether a party has standing to seek relief in a suit affecting the parent-child relationship is governed by the Texas Family Code. In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.-Dallas 2012, pet. denied). A party seeking relief in a suit affecting the parent-child relationship must allege and establish standing within the parameters of the language used in the relevant statute. In re I.C.G., No. 05-14-01629-CV, 2015 WL 3454278, at *2-3 (Tex. App.-Dallas June 1, 2015, no pet.). Whether a party has standing is a question of law which we review de novo. Id.

         The family code identifies the persons who possess general standing to file an original suit affecting the parent-child relationship. Tex. Fam. Code Ann. § 102.003(a) (West 2014). Under section 102.003(a)(12), "a person who is the foster parent of a child placed by the Department [] in the person's home for at least 12 months . . ." has standing to file an original suit. Id. at § 102.003(12). The family code also contains an express provision that specifically governs the circumstances under which a person may intervene in a pending suit affecting the parent-child relationship. Id. at § 102.004(b); In re Salverson, 01-12-00343-CV, 2012 WL 1454549, at *2 (Tex. App.-Houston [1st Dist.] Apr. 23, 2012, no pet.). In particular, under section 102.004(b), a trial court "may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit . . . if there is satisfactory proof to the court that appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 102.004(b); In re A.T., 2014 WL 11153028, at *9 (under section 102.004(b) the trial court acts as a gatekeeper). ...


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