in the Interest of A.T., a Minor Child ( 2014 )

Reversed and Remanded and Memorandum Opinion filed July 1, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00071-CV
IN THE INTEREST OF A.T., A MINOR CHILD
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2012-38393
MEMORANDUM OPINION
Troy J. Wilson and Georgette George-Wilson appeal the trial court’s final
decree terminating the parental rights of minor child A.T.’s parents and appointing
the Texas Department of Family and Protective Services (the “Department”) as
sole managing conservator of A.T. The Wilsons argue on appeal that the trial
court (1) abused its discretion in striking their petition to intervene because they
had standing to intervene under Texas Family Code sections 102.003(a)(10) and
102.004(b); (2) erred in terminating the parental rights of A.T.’s father because
there was legally insufficient evidence to terminate his rights under the clear and
convincing evidence standard; and (3) abused its discretion in granting the
Department an extension of the legislatively prescribed dismissal date in violation
of Texas Family Code section 262.201. We reverse and remand.
Background
A.T.’s parents are F.L.T. (“Mother”) and D.H. (“Father”). A.T. remained in
the hospital for several weeks after her birth on June 20, 2012, because she was
“born with bleeding in her brain and has a hole in her heart.” The Department
filed an original petition for protection of a child, for conservatorship, and for
termination in a suit affecting the parent-child relationship on July 5, 2012.
Mother’s parental rights to several other children previously had been terminated
“due to non-compliance with medications and refusal to cooperate with [the
Department].” Mother has a history of schizophrenia and depression.
The trial court signed an order on July 11, 2012, setting a hearing on the
Department’s request for temporary orders and appointing an attorney ad litem,
Wendy Prater (“Ad Litem Prater”), to represent A.T. The trial court designated the
Department as temporary managing conservator of A.T. after a hearing on August
2, 2012. Mother was notified of the hearing but did not appear. Father was not
notified of the hearing and did not appear. In the order, the trial court stated the
date of dismissal was July 22, 2013, and set a status hearing for September 13,
2012.
A.T. was released from the hospital on August 15, 2012, and the Department
placed her with foster parents, Troy J. Wilson and Georgette George-Wilson. The
Wilsons already were foster parents to A.T.’s older sister.
The Department filed a family service plan for Mother and Father with the
trial court on September 11, 2012; that same day, the Department also filed a status
2
report with the court.
The trial court held a status hearing on September 13, 2012. The
Department attorney and Ad Litem Prater appeared. Mother and Father were
notified of the hearing but did not appear. The trial court approved the
Department’s family service plan for Mother and Father, and set a permanency
hearing for January 10, 2013.
The Wilsons filed a petition to intervene on November 1, 2012; they asserted
standing on grounds that (1) “they have had substantial contact with the minor
child since she was less than two months old and a return of the child to the
biological mother would result in detriment to the emotional and/or physical
development;” and (2) both Mother and Father “have or will execute an Affidavit
of Relinquishment naming interveners as prospective adoptive parents and joint
managing conservators of the child.” The Wilsons sought termination of Mother’s
and Father’s parental rights based on affidavits of relinquishment, and sought to
adopt A.T.1
The Department filed a permanency plan and progress report in the trial
court on December 20, 2012, in which it stated that the primary permanency goal
was unrelated adoption and that the foster parents are “willing to adopt the child.”
The trial court held a permanency hearing on January 10, 2013. The Department’s
attorney, case worker Courtney Wilson, and Ad Litem Prater appeared at the
hearing. Mother and Father were notified of the hearing but did not appear. It was
noted on the January 10, 2013 order that Mother signed an affidavit of
1
The record contains an affidavit for voluntary relinquishment that was signed by Mother
on October 29, 2012, and filed in the trial court on January 10, 2013. The record contains an
affidavit for voluntary relinquishment that was signed by Father on June 27, 2013, and filed in
the trial court on June 28, 2013.
3
relinquishment on October 29, 2012, which was filed on January 10, 2013. 2 The
trial court set a permanency hearing for March 28, 2013.
The Department removed A.T. and her older sister from the Wilsons’ home
on January 21, 2013, because of allegations of neglect; Georgette acknowledged
that she had left A.T. and her older sister unattended. A.T. and her sister were
placed with another foster family.
The Department filed a permanency plan and progress report in the trial
court on March 6, 2013, in which it stated that the primary permanency goal was
unrelated adoption but it did not name any prospective adoptive parents. The
report also stated that Father was in Harris County jail. The trial court signed a
permanency hearing order on March 28, 2013, setting the next permanency hearing
for June 27, 2013. The order stated that the Department attorney, case worker
Courtney Wilson, and Ad Litem Prater appeared at the hearing; the order did not
mention Mother and stated that Father did not appear at the hearing although he
was notified. The trial court also signed an order for DNA testing of Father at the
Harris County jail.
The Wilsons filed an original motion to modify temporary orders for
conservatorship on June 27, 2013, “request[ing] that the court appoint them
temporary, and later, permanent managing conservators of the child which they
assert is in the best interest of the child.” The Wilsons stated in their motion that it
is in the “best interest of [A.T.] that they be appointed sole managing conservators
2
In the affidavit, Mother stated: “I understand that the Texas Department of Family and
Protective Services (DFPS) has been appointed Temporary Managing Conservator of my child
and I designate DFPS along with Troy J. Wilson and Georgette George-Wilson, the prospective
adoptive parents, as joint managing conservators of the child. I give my consent for DFPS to
place my child with Troy J. Wilson and Georgette George-Wilson for adoption. In the event,
Troy J. Wilson and Georgette George-Wilson decide not to adopt my child, I give my consent for
DFPS to place my child with another competent family for adoption.”
4
of the minor child the subject of this suit and represent that they are prepared to file
a petition for adoption and have filed a petition to adopt [A.T.]’s sibling.”
The trial court held a permanency hearing on June 27, 2013, at which the
Department attorney, case worker Courtney Wilson, Ad Litem Prater, and the
Wilsons appeared; Mother and Father did not appear. The Department informed
the court that (1) DNA testing confirmed the paternity of Father; (2) DNA results
were filed in the trial court; (3) Father was notified of the paternity results at Harris
County jail; and (4) Father had been released from jail. The trial court appointed
attorney Robert Johnson to represent Father. After hearing the case worker’s
testimony about A.T.’s well-being, the court approved the continued placement of
A.T. with foster parents; set the case for a permanency hearing and trial on July 18,
2013; and signed an order appointing Robert Johnson as attorney ad litem for
Father.
On July 12, 2013, the Wilsons as “intervenors” filed a motion to dismiss the
Department from the underlying case on grounds that (1) Rule 245 requires 45-
day-notice of a trial setting; (2) the case had been pending for almost a year and no
45-day-notice had been given to the parties; (3) there are no extraordinary
circumstances in that all of the parties had been known for at least 6 months; (4)
the failure of the Department to get a trial setting and give 45 days notice are not
grounds for granting an extension; (5) “intervenors” ask the Department be
dismissed from the case; and (6) Mother and Father have executed affidavits of
relinquishment in favor of “intervenors” and were going to “execute necessary
papers maintaining them as managing conservators” of the child.
The Wilsons filed an amended petition to intervene on July 15, 2013, in
which they sought permanent joint managing conservatorship of A.T. in addition to
5
termination of the parental rights of A.T.’s biological parents and adoption of A.T.3
Father filed a general denial in response to the Department’s petition in a
suit affecting the parent-child relationship on July 16, 2013. Father filed a motion
for continuance on July 17, 2013, arguing that he “needs additional time to
complete Service Plan and to confer with his attorney.”
On July 18, 2013, the Wilsons as intervenors filed their objection to the July
18, 2013 trial setting, stating that (1) their interests and the Department’s interests
were no longer aligned; (2) intervenors and the Department both seek to become
managing conservator of the child; (3) intervenors have no confidence the
Department will protect their interests, which was the reason for the intervention;
(4) Rule 245 mandates 45 days notice of trial to all parties in a contested matter;
(5) the matter was not set for trial until June 27, 2013, giving the parties only 21
days notice of the July 18, 2013 trial setting; and (6) intervenors do not agree to
waive the 45-day-notice requirement.
On July 18, 2013, the Department, through its attorney and case worker
Courtney Wilson, Ad Litem Prater, Father’s attorney, the Wilsons as intervenors,4
and the Wilsons’ attorney Brendetta Scott appeared in the trial court for the first
trial setting. After the trial court swore in all the present witnesses, Troy Wilson
stated: “I would invoke the Rule.” The trial court then asked how Troy had
3
In its brief, the Department acknowledges that the “controlling petition” for purposes of
this appeal is the amended petition to intervene filed on July 15, 2013. The amended petition to
intervene does not appear in the clerk’s record. A copy is attached to the Department’s brief; no
party disputes the propriety of referencing the amended petition to intervene or the accuracy of
the copy attached to the Department’s brief. This court has asked for the clerk’s record to be
supplemented; in the interest of time due to the deadline for deciding this appeal, we will
reference the copy attached to the Department’s brief pending supplementation of the clerk’s
record.
4
Troy Wilson stated in court that he was the intervenor and co-counsel, that he would be
arguing on July 18, 2013, and that his co-counsel Brendetta Scott would be arguing “from
henceforth.”
6
standing as an intervenor. Troy responded that he had been an intervenor since
November 1, 2012; had substantial contacts with A.T. at the time; and had worked
with the Department “hand in hand” at the time.
The trial court proceeded to hear Father’s motion for continuance. Father’s
attorney stated that he (1) needed additional time to confer with his client; (2) had
concerns about the affidavit of relinquishment signed by Father on June 27, 2013;
and (3) wanted to make sure Father understood what he had signed because he did
not give Father the relinquishment form. Ad Litem Prater agreed to the
continuance because the affidavit was signed at 12:30, the same day Father’s
counsel was appointed, and the form was “definitely” not presented to Father by
his appointed counsel.
The trial court then asked Troy: “[W]hether or not you have standing,
what’s your position?” Troy responded that he opposed Father’s motion for
continuance because he and Father’s attorney had visited Father on July 17, 2013;
Father’s attorney “went through the affidavit” with Father, “asked him all the
pertinent questions,” and Father stated that he relinquished his parental rights
voluntarily. The trial court then disqualified Troy because he was testifying to
facts. The trial court next asked Troy’s attorney for her position on Father’s
motion for continuance. Troy’s attorney asked to call Troy to the stand but the
trial court stated: “No, ma’am. I want to know. Well, anyway, it’s granted. Go
get a mandamus.” Thereafter, the following exchange occurred:
THE DEPARTMENT: Well, Your Honor, if we grant the continuance
which . . .
THE COURT: I already granted it.
THE DEPARTMENT: Yes, Your Honor. We need an extension.
THE COURT: The extension is granted.
TROY WILSON: Okay. Your Honor, let the record show that we —
7
we object to the extension.
THE COURT: Let the record reflect that you told me you were an
attorney. You’re representing yourself. And now you’re telling me
about facts. And as I understand the Rules of Ethics and the law, if
you’re a witness, you can’t be the attorney. And that would be my
ruling with regard to your position at this time.
TROY WILSON: Well, Your Honor, I misunderstood what you were
asking me. You asked me why did I oppose it.
THE COURT: Anyway, I’m granting the continuance and the
extension.
THE WILSONS’ COUNSEL: Your Honor, we object to the
extension.
THE COURT: I understand, you object.
* * *
THE COURT: Okay. So, the extension of the dismissal date is
granted for February 3rd, 2014. Trial date [is] September 19, 2013.
And the reason for the continuance is, dad, who is relinquishing or
reconsidering relinquishing his rights has not had an attorney except
since June 27th. So, he’s not ready for trial. Okay.
The trial court signed an order retaining the suit on the court’s docket and setting
the new dismissal date for February 3, 2014.
On July 18, 2013, the Wilsons as intervenors also filed their objection to any
extension sought by the Department or any other party, arguing that (1) no
extraordinary circumstances warranting an extension exist; (2) each party had been
served for no fewer than 10 months and the Department has known of the
whereabouts of each party; (3) equity does not bail out those who sit on their
hands, and an extension would reward the Department for failing to carry out its
obligations; (4) no service plan had been set up for the parents; (5) the Department
did not seek DNA testing of Father until the end of March 2013, despite having
him served in early September 2012; (6) the Department did not obtain an affidavit
of relinquishment from either parent and was “content to move at a snail’s pace;”
8
and (7) despite having terminated the parent-child relationship for six children of
Mother and alleging that Mother suffered from mental instability, the Department
never sought to have an attorney appointed for Mother.
On August 1, 2013, the trial court allowed Father’s attorney to withdraw
from the case and appointed a new attorney ad litem for Father.
Ad Litem Prater filed a motion to strike the Wilsons as intervenors and their
pleadings on October 16, 2013, arguing that the Wilsons (1) failed to ask for leave
from the trial court to intervene in this case pursuant to Texas Family Code Section
102.004 despite having “plenty of time to follow the procedure;” and (2) did not
have substantial past contact because A.T. had only been in the Wilsons’ care for
five months from August 15, 2012 to January 22, 2013, and the Wilsons did not
have contact with A.T. from January 22, 2013 to October 16, 2013.
The Wilsons as intervenors filed their response to the motion to strike on
October 23, 2013. The Wilsons first argued that Ad Litem Prater should not be
permitted to challenge the Wilsons’ intervention because she has “never asserted
until now that she did not receive the Intervention filed on or about November 1,
2012 or the Amended Intervention filed on or about July 12, 2013” despite
appearing at several hearings and trial settings at which the Wilsons were present
and raised issues as intervenors. Second, they contended that the “substantive
contact required by the Texas Family Code is not determined at the time of trial but
at the time of filing;” Ad Litem Prater “does not allege that there was not
substantive contact at the time of filing;” and they maintained “substantive
contact” even after A.T. was removed from their care. Third, the Wilsons
contended that Ad Litem Prater was served with the original and amended petition
to intervene, and the Wilsons were named by Mother and Father as managing
conservators in their respective affidavits of relinquishment.
9
The Department attorney, case worker Courtney Wilson, Ad Litem Prater,
the Father’s attorney, the Wilsons as intervenors, and the Wilsons’ attorney
Brendetta Scott appeared in the trial court at the third trial setting on October 24,
2013. Ad Litem Prater announced that she had a “Motion to Strike Intervenor.
That’s set for today as well. That should be heard prior to trial, please.” Ad Litem
Prater also argued that the trial court could strike the Wilsons on the day of trial
because “they haven’t asked for leave to ever intervene.”
The Wilsons contended that the trial court already had granted them leave as
intervenors at the July 18, 2013 hearing, and that they had substantial contact with
A.T. The trial court then stated: “Well, I think that’s a matter of proof. So, let’s
have a hearing on intervention. Yes. All right. Everybody has been sworn. Who
wants to testify?”
Ad Litem Prater proceeded to argue that she never received a copy of the
Wilsons’ petition to intervene of November 1, 2012, and that she found out about
the Wilsons’ intervention when an amended intervention was filed in July 2013.
She also argued that A.T. was in the Wilsons’ care for five months until A.T. was
removed from their home in January 2013, and the Wilsons had had no contact
with A.T. after the removal.
Case worker Courtney Wilson testified at the hearing that A.T. had been
placed in the Wilsons’ care from August 2012 to January 21, 2013. She testified
that A.T. was removed because there were “some marital issues between the
Wilsons” and there was an investigation “due to neglectful supervision.”
According to the case worker, the Wilsons were not allowed to have any contact
with A.T. after A.T. was placed with another foster family; the Department never
intended for A.T. to be returned to the Wilsons or to be adopted by the Wilsons.
Troy testified that he did not see A.T. in person after she was removed from
10
the Wilsons’ home, but his wife visited with A.T. at least once a month; according
to Troy, he saw A.T. through videotapes his wife brought back from visits with
A.T. Troy claimed to have had regular telephone contact with A.T. but could not
quantify the telephone contact. Troy testified that he purchased clothes, foods,
toys, and anything A.T.’s new foster mother requested. Troy also testified that he
filed the Wilsons’ petition to intervene on November 1, 2012, and then faxed it to
Ad Litem Prater, the Department, the case worker, and the Father’s attorney on
November 2, 2012. At that time, A.T. still was in the Wilsons’ care.
The trial court interjected that Troy “filed the Intervention, and probably had
standing at that time.” The trial court also stated: “I think you have to prove
standing today. He undoubtedly — I don’t know about undoubtedly —
conceivably had standing from August 2012 to January 22nd, 2013. I don’t make
that finding, but I would say probably, prima facie or something because you had
the child in your home. . . . But not since January 22nd, 2013 unless you can
establish that today. . . . I think that’s where we are.”
Troy testified that, when he asked for visitation of A.T. at the end of January
2013, the Department said he could not have visitation with A.T. because of
“[i]ntake concerns.” Troy acknowledged that he had to give up his foster license in
January 2013. He testified that the Department knew his wife had visitations with
A.T. and was “positive” the Department set up her visits.
Georgette Wilson testified that she had visitations with A.T. “two to three
times a month” until August 15, 2013, and that the Department did not object to
visitations; she acknowledged that the Department never gave her permission to
visit A.T. or set up visitation times after A.T. was removed from her home.5
5
Georgette denied that the Department removed A.T. “due to accusations of abuse and
neglect” but claimed that she “asked for respite” for a weekend. Georgette explained: “My
11
Georgette testified that she had contact with A.T.’s current foster parent and
provided food, clothes, toys, and anything the foster parent said A.T. needed.
Georgette stated that she held, played, and bonded with A.T. during visitations,
which usually lasted between 20 and 30 minutes. Georgette also stated that she
talked to A.T. once a week on the telephone even though A.T. was only one year
old.
Georgette claimed that she had frequent communications with the case
worker, and that the case worker updated her on A.T.’s well-being and progress.
According to Georgette, she believed that she still would be able to adopt A.T.
after the Department removed A.T. from her home because the Department (1) told
her she could adopt A.T. if she divorced Troy; and (2) gave her instructions in that
regard. She testified that she filed for divorce from Troy after the Department gave
her instructions, but she nonsuited the divorce once she “realized [she] wasn’t
going to get [A.T.] back.” She testified that she got an apartment; filed for
divorce; and went to parenting classes, anger management classes, and therapy.
After hearing the witnesses’ testimony, the trial court ruled: “Regrettably,
Mr. and Ms. Wilson, the Court finds you do not have standing. So, the
Intervention is stricken. Sorry.” The trial court then recessed the trial on
termination of Father’s and Mother’s parental rights.
The trial on termination resumed on November 21, 2013. After hearing
evidence, the trial court granted termination of Mother’s and Father’s parental
rights and appointed the Department as managing conservator. The trial court
signed a final decree of termination of Mother’s and Father’s parental rights on
December 12, 2013. In the decree, the trial court appointed the Department as sole
understanding of respite is something that is entitled to us if we needed a break, a weekend, day
or two, whatever it was.”
12
managing conservator of A.T.
The Wilsons filed a notice of appeal on January 3, 2014. The Wilsons filed
a motion for new trial on January 10, 2014, which was overruled by operation of
law. In their motion, the Wilsons argued that the trial court erred in striking them
as intervenors because (1) their petition for intervention had been on file for 51
weeks; (2) Ad Litem Prater in fact received notice of the Wilsons’ November 1,
2012 petition to intervene; (3) the trial court acknowledged the Wilsons had
substantial contact with A.T. at the time they filed their petition to intervene and
“facts on that particular date are what determines whether or not there exists
substantial past conduct;” and (4) “they had been named as the managing
conservator and prospective adoptive parents” by Mother and Father in unrevoked
affidavits of relinquishment.
The Wilsons filed an amended notice of appeal on January 17, 2014.
Analysis
The Wilsons argue in their first issue that the trial court abused its discretion
when it struck their petition to intervene in a suit affecting the parent-child
relationship the Department filed on July 5, 2012. The Wilsons argue that the trial
court should not have struck their petition because they asserted “standing to
intervene based on the fact that they had substantial contacts” with A.T. pursuant
to Texas Family Code section 102.004(b), and were named as conservators in
Mother’s and Father’s affidavits of relinquishment pursuant to Texas Family Code
section 102.003(a)(10).
I. Standard of Review
The inquiry here focuses on the statutory prerequisites for standing
established by the Texas Legislature in this particular context. See In re S.A.M.,
13
321 S.W.3d 785, 788 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also In
re K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
A trial court’s standing determination is reviewed de novo. In re S.A.M., 321
S.W.3d at 788. When, as in this case, the trial court does not make separate
findings of fact and conclusions of law, we imply that the trial court made all
necessary findings and we will uphold the trial court’s decision on any legal theory
supported by the evidence. In re J.C., 346 S.W.3d 189, 193 (Tex. App.—Houston
[14th Dist.] 2011, no pet.); see also Mauldin v. Clements, 428 S.W.3d 247, 262
(Tex. App.—Houston [1st Dist.] 2014, no pet.); In re S.M.D., 329 S.W.3d 8, 13
(Tex. App.—San Antonio 2010, pet. dism’d). We review the entire record to
determine if the trial court’s implied findings are supported by any evidence.
Mauldin, 428 S.W.3d at 263; In re S.M.D., 329 S.W.3d at 13. We may not
consider a trial court’s oral comments at the hearing or at rendition as a substitute
for findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716
(Tex. 1984) (per curiam); In re J.C., 346 S.W.3d at 193.
When standing has been conferred by statute, the statute itself serves as the
proper framework for a standing analysis. In re K.D.H., 426 S.W.3d at 883; In re
S.M.D., 329 S.W.3d at 12; see In re S.A.M., 321 S.W.3d at 788. “In the context of
a suit affecting the parent-child relationship, standing is governed by the Texas
Family Code, and ‘[t]he party seeking relief must allege and establish standing
within the parameters of the language used in the statute.’” In re S.M.D., 329
S.W.3d at 12-13 (quoting In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San
Antonio 2008, pet. denied)); see also In re K.D.H., 426 S.W.3d at 883-85; In re
S.A.M., 321 S.W.3d at 788.
Contrary to the trial court’s statement that the Wilsons were required to
prove standing at the time of the intervention hearing, the question is whether the
14
facts establishing standing existed at the time the petition was filed in the trial
court. See Mauldin, 428 S.W.3d at 263; In re S.M.D., 329 S.W.3d at 13, 16; see
also In re H.B.N.S., Nos. 14-05-00410-CV, 14-05-00102-CV, 2007 WL 2034913,
at *3-4 (Tex. App.—Houston [14th Dist.] July 17, 2007, pet. denied) (mem. op.)
(Standing to intervene is measured at the time the intervention is filed.).
II. Intervention Based on Texas Family Code Section 102.004(b)
We first address the Wilsons’ argument that the trial court erred in striking
their petition to intervene for lack of standing under section 102.004(b). See Tex.
Fam. Code Ann. § 102.004(b) (Vernon 2014). The Wilsons argue that the
evidence establishes they had substantial past contact with A.T. when they filed
their petition to intervene, and that standing to intervene should be measured when
the intervention is filed. The Wilsons argue that they had “consistent contact” with
A.T. even after A.T. was removed from their home; they also contend that the
“‘substantial contact’ required by the statute does not require actual possession and
control of the child.”
The Department responds that the trial court properly struck the Wilsons’
petition to intervene because section 102.004(b) requires leave to intervene in a
pending suit affecting the parent-child relationship, and the Wilsons failed to
obtain leave. The Department also contends that “the Wilsons failed to overcome
the challenge to the Wilsons’ standing” at the hearing on intervention when they
failed to request permission to intervene and failed to present sufficient evidence of
substantial past contact.
Before we address whether the Wilsons established standing under section
102.004(b), we will consider the Department’s assertion that section 102.004(b)
required the Wilsons to request leave to intervene, and that the Wilsons failed to
request leave in this case.
15
Section 102.004(b) provides: “[T]he 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 filed by a person authorized to do so under this
subchapter if there is satisfactory proof to the court that appointment of a parent as
a sole managing conservator or both parents as joint managing conservators would
significantly impair the child’s physical health or emotional development.” Id.In interpreting a statute, we determine and give effect to the legislature’s
intent from the plain and common meaning of the statute. See Columbia Med. Ctr.
of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008); In re K.D.H., 426
S.W.3d at 884. We must not interpret the statute in a manner that renders any part
of the statute meaningless or superfluous. Columbia Med. Ctr., 271 S.W.3d at 256.
Based on section 102.004(b)’s plain language, we conclude that a person is
required to ask the trial court for leave in order to intervene under section
102.004(b) in a suit affecting the parent-child relationship; a contrary conclusion
impermissibly would render meaningless the words “the court may grant . . . leave
to intervene.” The Wilsons therefore were required to request leave to intervene in
the pending suit affecting the parent-child relationship. See L.J. v. Tex. Dep’t of
Family & Protective Servs., No. 03–11–00435–CV, 2012 WL 3155760, at *8 (Tex.
App.—Austin Aug. 1, 2012, pet. denied) (mem. op.) (The legislature promulgated
a separate provision governing interventions in family law cases that explicitly sets
out the circumstances under which a non-parent may ask a trial court’s permission
to intervene in a suit affecting a parent-child relationship; therefore, Texas Rule of
Civil Procedure Rule 60 has no applicability in interventions under section
102.004(b)); Oehlerich v. Tex. Dep’t of Protective & Regulatory Servs., No. 03–
98–00309–CV, 1999 WL 546970, at *2 n.3 (Tex. App.—Austin July 29, 1999, no
pet.) (not designated for publication) (In a case considering intervention pursuant
16
to section 102.004(b), the court noted that “[b]efore 1995, [] intervention was
governed by Texas Rule of Civil Procedure 60, which did not require leave of
court to intervene and placed the burden of proof on the party moving to strike the
intervention ‘for sufficient cause.’”).6
We reject the Department’s assertion that the Wilsons never requested leave
to intervene. The Wilsons’ amended petition to intervene reasonably can be read
as a request for leave to intervene. The petition (1) alleges that the Wilsons are
foster parents and have standing to intervene “because they have had substantial
contact with [A.T.] since she was less than two months old and a return of [A.T.]
to the biological mother would result in detriment to the emotional and/ or physical
development and both the mother and father of the child have executed an
Affidavit of Relinquishment naming interveners as prospective adoptive parents
and either sole or joint managing conservators of the child intervention;” (2) seeks
termination of Mother’s and Father’s parental rights, appointment of the Wilsons
as permanent joint managing conservators of A.T., and adoption of A.T.; and (3)
concludes by stating that the Wilsons “ask[] this court to grant the relief requested
in this intervention.”
The trial court reasonably could have viewed the Wilsons’ petition to
intervene as a request for leave to intervene as contemplated by section 102.004(b).
6
We see no tension between this holding and the passing reference to Rule 60 in
Mauldin, 428 S.W.3d at 262. After noting Rule 60, the court went on to apply intervention
procedures under section 102.004(b) that are consistent with requiring the party seeking
intervention to establish a basis for standing even in the absence of a motion to strike. Id. We
likewise see no tension between this holding and the discussion of Rule 60 in Seale v. Tex. Dep’t
of Family & Protective Servs., No. 01-10-00440-CV, 2011 WL 765886, at *2-3 (Tex. App.—
Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.). Rule 60 was applied in Searle because
“[a]ll parties agreed that Texas Rule of Civil Procedure 60 governs the intervention procedure in
this case.” Id. Seale appropriately refrained from addressing a legal issue regarding the
mechanics of intervention procedure that was not presented to it based on the parties’ briefing in
that case. See id.17
However, the trial court never granted the Wilsons leave to intervene; instead, it
struck their petition for lack of standing at the October 24, 2013 “hearing on
intervention.” We therefore consider next whether standing to intervene under
section 102.004(b) was established on this record. If the prerequisites for standing
under section 102.004(b) were satisfied, then the trial court had discretion to allow
the Wilsons to intervene in the pending suit affecting the parent-child relationship.
See Tex. Fam. Code Ann. § 102.004(b); L.J., 2012 WL 3155760, at *7; In re
S.M.D., 329 S.W.3d at 14; In re H.B.N.S., 2007 WL 2034913, at *3-4.
In addressing whether the prerequisites under section 102.004(b) were
satisfied, we look for guidance to the discussion of section 102.004(a) in In re
K.D.H., 426 S.W.3d at 884. We do so because sections 102.004(a) and 102.004(b)
both contain unique statutory language conditioning the ability to intervene on the
proffer of “satisfactory proof to the court” concerning particular intervention
requirements.
“Ordinarily, standing is based on the existence of certain facts, not the
existence of certain proof.” In re K.D.H., 426 S.W.3d at 884. “Section 102.004(a)
is an unusual provision because, in it, the Texas Legislature confers standing on
certain [persons] based on the existence of proof rather than the existence of facts.”
Id. This observation applies with equal force to intervention under section
102.004(b).
Thus, to establish standing to intervene in a pending suit under section
102.004(b), the legislature requires a person to (1) demonstrate “substantial past
contact with the child;” and (2) provide “satisfactory proof to the court that
appointment of a parent as a sole managing conservator or both parents as joint
managing conservators would significantly impair the child’s physical health or
emotional development.” See Tex. Fam. Code Ann. § 102.004(b); L.J., 2012 WL
183155760, at *7; In re S.M.D., 329 S.W.3d at 14. Under section 102.004(b), as in
section 102.004(a), the trial court acts as a gatekeeper in assuring that “satisfactory
proof” exists. See In re K.D.H., 426 S.W.3d at 885.
After the trial court announced “let’s have a hearing on intervention,” the
Wilsons had the burden of providing proof that they had substantial past contact
with A.T.; they also had the burden of providing “satisfactory proof to the court
that appointment of a parent as a sole managing conservator or both parents as
joint managing conservators would significantly impair [A.T.]’s physical health or
emotional development.” See Tex. Fam. Code Ann. § 102.004(b); L.J., 2012 WL
3155760, at *7; In re S.M.D., 329 S.W.3d at 14-15; see also In re K.D.H., 426
S.W.3d at 885.
At the October 24, 2013 intervention hearing, the Wilsons, Ad Litem Prater,
and the Department presented their respective arguments regarding whether the
Wilsons had standing to intervene as alleged in their petition. The trial court heard
evidence presented by the Wilsons, Ad Litem Prater, and the Department
addressing whether the Wilsons had substantial past contact with A.T. The
Wilsons presented evidence that they had substantial past contact with A.T. at the
time they filed their petition to intervene on November 1, 2012 because A.T. had
lived in their home from August 2012 to January 2013. The Department and Ad
Litem Prater presented evidence that there was essentially no contact between Troy
and A.T. — and very little contact between Georgette and A.T. — after A.T. was
removed from the Wilsons’ home in January 2013. The evidence presented at the
evidentiary hearing on intervention did not address whether appointment of Mother
or Father as managing conservator would “significantly impair the child’s physical
health or emotional development” at the time the Wilsons’ filed their petition to
intervene or at any other time.
19
Even assuming that the hearing record contains evidence establishing that
the Wilsons had substantial past contact with A.T. as required by section
102.004(b), we cannot conclude that the Wilsons met their burden to establish
“satisfactory proof” that appointment of A.T.’s Mother or Father as managing
conservator would “significantly impair [A.T.]’s physical health or emotional
development” as required by section 102.004(b). Therefore, we have no basis to
disturb the trial court’s denial of leave to intervene and striking of the petition to
intervene under section 102.004(b). We overrule the Wilsons’ first issue in that
respect.
III. Intervention Based on Texas Family Code Section 102.003(a)(10)
We next address the Wilsons’ argument that the trial court “abused its
discretion” in striking their petition to intervene because they had an independent
basis for standing under section 102.003(a)(10) sufficient to allow intervention.
See Tex. Fam. Code Ann. § 102.003(a)(10) (Vernon 2014).
According to the Wilsons, and as alleged in their amended petition in
intervention, they had standing to bring an original suit pursuant to section
102.003(a)(10) after being named managing conservators in Mother’s and Father’s
affidavits of relinquishment. The Wilsons argue that intervention is permitted for a
person who could have brought the original suit; they further contend that they
“met the requirements of the rule in that they were named as managing
conservator[s]” in the relinquishment affidavits signed by Mother and Father.
Section 102.003(a)(10) provides that an original suit may be filed at any
time by “a person designated as the managing conservator in a revoked or
unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to
adoption has been given in writing under Chapter 162.” Id.20
The Wilsons did not assert standing by filing an original suit under section
102.003(a)(10). Instead, the Wilsons asserted standing by invoking section
102.003(a)(10) as a basis for their request to intervene. Although section 102.003
sets forth the statutory standing bases for filing an original suit rather than
intervening, we cannot conclude that a person who satisfies the statutory standing
requirements to file an original suit is nonetheless foreclosed from intervening.
See In re S.B., No. 02-11-00081-CV, 2011 WL 856963, at *2-3 (Tex. App.—Fort
Worth Mar. 11, 2011, orig. proceeding) (mem. op.) (grandparents who satisfied
section 102.004(a)’s requirements for filing original suit “also have the right to
intervene in real parties’ original, pending suit to terminate . . . parental rights and
seek managing conservatorship . . . .”); cf. In re Union Carbide Corp., 273 S.W.3d
152, 155 (Tex. 2008) (per curiam) (“[A] party may intervene if the intervenor
could have ‘brought the [pending] action, or any part thereof, in his own name.’”)
(quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657
(Tex. 1990)).
Ad Litem Prater moved to strike the Wilsons’ petition to intervene, arguing
that (1) the Wilsons alleged standing to “intervene based on substantial contact
with the child, and the claim that the biological parents name[d] them as potential
adoptive parents,” (2) section 102.004(b) states that a court may grant leave to
intervene to a person with substantial past contact with the child, but the “Texas
Family Code makes no mention of a claim that if the biological parents name [the
Wilsons] as potential adoptive parents this would be a reason to allow standing to
intervene;” (3) the Wilsons failed to request leave to intervene; and (4) the Wilsons
do not have substantial contact with A.T. The Wilsons responded to Ad Litem
Prater’s motion to strike, contending, among other things, that they had standing to
intervene because they had substantial past contact with A.T. and had been named
21
by both biological parents as managing conservators of the child.
At the hearing on intervention, the Wilsons attempted to establish that they
had been named specifically as managing conservators in Mother’s and Father’s
affidavits of relinquishment. The Wilsons argued that the affidavits are “very
relevant” because they named the Wilsons as “joint managing conservators as well
as the sole managing conservator.” The trial court declined to consider the
affidavits; sustained the Department’s relevancy objection regarding the affidavits;
and stated: “It’s not relevant. . . . It may be in another proceeding, but [not] on the
standing issue.” Despite the Wilsons’ attempt at the hearing to (1) argue that they
have standing to intervene in the case because they had been named managing
conservators in the parents’ affidavits of relinquishment; and (2) present evidence
of the parents’ affidavits naming them managing conservators, the trial court
declined to consider the Wilsons’ argument.
It was error for the trial court not to consider whether the Wilsons have
standing to intervene under section 102.003(a)(10) when standing to intervene
under that section was raised by the Wilsons’ pleadings and the Wilsons’
arguments at the hearing on intervention. Because the trial court erred in declining
to consider whether the Wilsons have standing to intervene under section
102.003(a)(10), we conclude that the trial court erred by striking the Wilsons’
petition to intervene without considering whether the Wilsons have standing to
intervene under section 102.003(a)(10). We therefore sustain the Wilsons’ first
issue in that regard. In light of our disposition of the first issue, we need not
address the Wilsons’ alternative argument in issue one that there was evidence
before the court contradicting Ad Litem Prater’s contention that she did not receive
the Wilsons’ petition to intervene; we also need not address the Wilsons’ second
and third issues.
22
Conclusion
Having concluded that the trial court properly struck the Wilsons’ petition to
intervene for lack of standing under section 102.004(b) but erred in failing to
consider whether the Wilsons had standing to intervene under section
102.003(a)(10), we reverse the trial court’s judgment, and remand this cause for
further proceedings consistent with this opinion.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Busby and Wise.
23