In the Interest of an Unnamed Child , 1979 Tex. App. LEXIS 3708 ( 1979 )

OPINION

SPURLOCK, Justice.

The paternal grandparents of an unnamed child appeal from a summary judgment denying all relief requested in their petition for adoption. The sole question presented is whether the grandparents have standing to petition for adoption of the child. We conclude they have standing. The transcript does not reflect whether the child was or was not represented in the trial court by a guardian ad litem.

We reverse and remand.

On July 24, 1978 an unnamed child was bom in Tarrant County, Texas. The parties in this case have admitted that the biological father of the child was Chris Wilson. Wilson was never married to the child’s mother and he did not legitimate the child. Wilson died on June 1, 1978. On July 28, 1978 the parental rights of the mother were terminated by a decree of the 324th district court. The Edna Gladney Home was appointed managing conservator of the child. The child has been and continues to be under the direction of the home.

It appears that Chris Wilson was the only child of appellants, James Wilson and wife, Evelyn. He was 18 years of age when he died. The Wilsons, grandparents, filed a petition for adoption of the child. They admit that a factor in their desire to adopt the child is that their blood line will end if they cannot adopt the child. The home has refused to consent to the adoption. Wilsons have alleged that the home has withheld its consent without good cause and that it is in the best interest of the child to be adopted by them. Their petition requests the court to waive the requirements that the child reside with them for six months and that the managing conservator consent to the adoption.

The home moved for summary judgment. It claimed the Wilsons are legal strangers to the child. The Wilsons admit they have no legal relationship with the child. Further, the home claims the Wilsons have never expressed any interest in adopting any child prior to this action, nor have they ever even seen the child in question. The home concludes the Wilsons lack standing to petition for adoption of this child.

The Wilsons filed affidavits in opposition to the motion for summary judgment. They filed one detailed affidavit signed by Julie Ann Strickland in which she stated that Chris A. Wilson was the father of the baby. Stated in summary form, she testified by affidavit that both grandparents agreed that whatever she decided to do with baby they would assist her. She and Chris discussed putting the child up for adoption with the Edna Gladney Home. Prior to June 1,1978 Chris pleaded with her to marry him and have them keep the baby. She at first refused and then decided that she would marry him and keep the baby. Chris died shortly thereafter. She then stated that she visited personally and by telephone with Evelyn and James Wilson and they finally decided that Mr. and Mrs. Wilson should adopt the child. She then at length testified that while in an emotional state she had signed some papers but did not know what they were. She then testified that she revoked any consent she may have made and she either wants her baby back or requests the court to permit Mr. and Mrs. Wilson to adopt the baby.

The trial court sustained the home’s motion for summary judgment. It rendered a judgment denying the adoption and all other relief requested by the Wilsons.

The home admits that, if the Wilsons have standing to petition the court for adoption, there are numerous fact questions to be resolved. As authority for its conclusion that the Wilsons lack standing, the home cites Lutheran Social Service, Inc. v. Farris, 483 S.W.2d 693 (Tex.Civ.App. — Austin 1972, writ ref’d n. r. e.). There the adoption agency specially excepted to a couple’s petition for adoption of a child of which the agency was managing conservator. Exception was made because the petition failed to allege that the consent of the agency had been obtained. The court held the agency’s consent was necessary and that the trial court should have sustained the exception. We note this case was decided before the effectiveness of the Texas Family Code.

Tex. Family Code Ann. § 16.05 (1975), provides that if a managing conservator of a subject child has been appointed, consent of the managing conservator is required for adoption unless the managing conservator is the petitioner for adoption. However, § 16.05(d) provides that if the court finds the managing conservator’s consent is refused, or has been revoked without good cause, the court can waive the requirement. Here the Wilsons have alleged that consent has been withheld without good cause.

The home urges that the Wilsons lack standing to petition for adoption because they are legal strangers to the child. We conclude this contention is without merit and begs the question. The express purpose of the statutory scheme of adoption is to create a parental relationship with the rights, powers, and responsibilities pertaining thereto between persons who prior to the adoption were generally legal strangers. We fail to discern how the fact the Wilsons are legal strangers, although blood kin to the child, disables them from petitioning for adoption. Tex. Family Code Ann. § 16.02 (1975), provides that any adult is eligible to adopt a child who is eligible to be adopted. Therefore, we conclude the fact that the Wilsons are legal strangers does not mean as a matter of law they are precluded from petitioning the court for adoption.

Although the Wilsons admit they have no legal relationship with or rights to the child, we recognize that a blood relationship exists between the Wilsons and the child. While we do not hold that this relationship gives the Wilsons any legal rights or interest, we note they have an interest in this particular child as a natural guardian. Lamar v. Micou, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94 (1885). Since a legal relationship is not a requirement for standing to petition for adoption in this case, we hold the Wilsons have standing to petition the court for adoption. The trial court erred in rendering the summary judgment against them.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

MASSEY, C. J., concurs. HUGHES, J., dissents.