in the Interest of M. R. W ( 2005 )

Dismissed and Memorandum Opinion filed August 23, 2005

Dismissed and Memorandum Opinion filed August 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00386-CV

____________

IN THE INTEREST OF M.R.W.

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 2003-33624

M E M O R A N D U M   O P I N I O N

Appellants, Marvinell and Gregory Harlan, appeal the trial court=s order dismissing their case for want of prosecution.  On June 18, 2003, the Harlans filed their original petition for adoption of a child, M.R.W.  The Texas Department of Protective and Regulatory Services (the ADepartment@) moved for the psychological or psychiatric evaluation of Marvinell Harlan.  Mrs. Harlan agreed to undergo an evaluation.  On October 23, 2003, the trial court signed an agreed order granting the Department=s motion for a psychiatric evaluation and ordering that Mrs. Harlan to submit to a custody evaluation promulgated by the American Psychological Association.  After the agreed order was entered, Mrs. Harlan changed her mind and decided not to submit to the court ordered evaluation.  Consequently, after a hearing on January 6, 2004, the trial court dismissed the Harlans= case for want of prosecution. 

On appeal, the Department asserts the Harlans lacked standing under the Texas Family Code to bring their suit for adoption.  We agree.  Standing is a component of subject matter jurisdiction, which is essential to a court=s power to decided a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553B54 (Tex. 2000); see also Texas Dep=t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004) (AStanding is a constitutional prerequisite to maintaining suit.@). The pleader is required to allege facts affirmatively demonstrating the court=s jurisdiction to hear the case.  Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  As an element of subject matter jurisdiction, standing cannot be waived and may be raised for the first time on appeal.  Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000); Texas Ass=n of Bus., 852 S.W.2d at 445B46. 

Section 102.005 specifically sets forth those parties who have standing to file an original suit for adoption:

(1) stepparent of the child;

(2) an adult who, as a result of a placement for adoption, has had actual possession and control of the child at any time during the 30-day period preceding the filing of the petition;

(3) an adult who has had actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition; or

(4) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

Tex. Fam. Code Ann. ' 102.005 (Vernon 2002).

The Harlans= petition filed on June 18, 2003, sets forth, in relevant part, that they:

are not related to the child the subject of this suit; and 

                                                    *        * *

seek to adopt the following child and Petitioners request that said child be allowed to reside in their home for the requisite six (6) month period . . . 

The Harlans do not allege any facts in their petition demonstrating jurisdiction under section 102.005.  The Harlans do not assert that either one of them is a stepparent to M.R.W. as required by subsection (1), but, instead, admit they are not related to M.R.W.  Tex. Fam. Code Ann. ' 102.005(1).  Furthermore, by requesting that the child be allowed to reside in their home, the Harlans admit that they had not had actual possession and control of M.R.W. either Aat any time during the 30-day period preceding the filing of the petition,@ or Afor not less than two months during the three-month period preceding the filing of the petition@ as required by subsections (2) and (3), respectively.  Id. '' 102.005(2) and (3).  Finally, the Harlans do not allege in their petition that they had had substantial past contact with M.R.W. to warrant standing to file the petition to adopt, as required by subsection (4).  Id. ' 102.005(4). 

The Harlans point out that their petition states M.R.W. Awill have lived in the home of Petitioners for at least six months when this case is heard.@  This statement, however, does not establish the requisites for standing under subsections (2) or (3), which require that the party seeking to file an original petition for adoption have had actual possession and control of the child for a specified period of time prior to filing the petition.  See id. ' 102.005(2) (Aat any time during the 30-day period preceding the filing of the petition@); ' 102.005(3) (Anot less than two months during the three-month period preceding the filing of the petition@).^[1]  Standing cannot be established after the filing of a suit for adoption. 

The Harlans also have included in the appendix to their appellate brief documents that are not part of the appellate record, including documents under a different trial court cause number.  Because the attachment of documents as appendices to appellate briefs is not formal inclusion in the record on appeal, we cannot consider them.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 771 (Tex. App.CHouston [14th Dist.] 1991, writ denied); see also Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (stating that order not included in clerk=s record would not be considered).  Therefore, because these documents were not part of the trial court=s record in this case, we will not consider them. 

The Harlans assert documents attached to various motions they filed establish that M.R.W. had resided with them at one time.  While we do not pass on the admissibility of documents attached to certain motions filed by the Harlans, we observe that those documents do not show that the Harlans had met the specific requirements of section 102.005 when they filed their petition on June 18, 2003. 

Finding that the Harlans lack standing to file their suit for adoption, we conclude the trial court was without jurisdiction to hear this case. Accordingly, we dismiss this appeal.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 23, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

---

^[1]  It is apparent that the Harlans are attempting to establish standing under Section 102.003(9) of the Texas Family Code, which provides general standing to file suit to Aa person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.@  Tex. Fam. Code Ann. ' 102.003(9) (Vernon Supp. 2004B05).  Without deciding whether section 102.003(9) even applies to an original suit for adoption only, we observe that the Harlans have not alleged facts sufficient to establish standing because 102.003(9) requires the person filing suit to have had actual care, control, and possession of the child for six months ending not more than 90 days prior to filing suit, while the Harlans hope to establish standing by satisfying the requisite time period after filing suit.