in the Interest of K.T.R., a Child ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00219-CV
IN THE INTEREST OF K.T.R., A CHILD
From the 74th District Court
McLennan County, Texas
Trial Court No. 2020-3858-3
DISSENTING OPINION
Context matters. From this simple tenant comes the most fundamental rule of
statutory construction. That rule is that, as a reviewing court, we must construe a statute
so that all parts have meaning. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271
S.W.3d 238, 256 (Tex. 2008) (stating that court "must not interpret the statute in a manner
that renders any part of the statute meaningless or superfluous"). If a construction of
one part of the statute guts the meaning or purpose of another provision, we look at the
broader context to see why and construe the statute so that all parts have meaning.
In this particular situation, the literal words of one small part of Section 102.005
seem to support the Court's analysis. That provision states "an adult who has had actual
possession and control of the child for at least two months during the three-month period
immediately preceding the filing of the petition" can force themselves into court as a party
for participation in the suit which will determine the child's future. See TEX. FAM. CODE
ANN. §102.005(3).
But in the context of the statute, the legislature was very restrictive on when and
how foster parents could involve themselves beyond being a witness, in the lives, and
litigation, involving their foster children. This is by design. This has a purpose. The only
reason the foster parent has any relationship with the child is because of the State's effort
to protect the child. To achieve that result, the State has to be able to control some aspects
of who can participate and how the legal process involving the child develops. To do this
it takes time and a plan. That plan sometimes requires the placement of the child with
foster parents. But the State cannot stop the natural process of bonding that occurs
between a child and someone who provides the essentials of life, including love. Thus,
the State has a strong interest in controlling, or limiting, the foster parent's ability to
become involved in, AKA interfere with, the plan the State has for the child. 1
Due to time constraints, however, I will not extend this opinion with an exhaustive
discussion of the legal analysis that supports my opinion of the way to construe the
statute. The mother's brief contains such an analysis, thus, I have attached as an appendix
1 It is not that I understand why the trial court removed the child a day or two before the foster parents
would have had standing to intervene in the suit. But that is not the legal question before us and the
legislature has set the policy by putting a hard timeframe and giving no discretion in this situation. The
trial court made a decision that had the specific purpose of not letting the foster parents obtain standing.
It is not for us to write in another exception to the limited circumstances for the benefit of a seemingly well-
intentioned foster parent.
In the Interest of K.T.R., a Child Page 2
to this dissenting opinion an excerpt of that brief. 2 While it is not expressed in the manner
that I might have written it as an opinion of the Court, the brief contains a thorough
analysis of the legislative history and why and how the statute was amended over time
and thus came to be written as it is. Moreover, it explains why the minor part of the
statute in Section 102.005(3) upon which the Court relies is simply not available to foster
parents to insert themselves into the life of a child under the State's care. It addresses the
precedent and why the case relied upon so heavily by the Court simply stopped short in
its analysis necessary to make the statute work as a whole. In summary, it is because if
one provision is cut out of the statute and made to stand alone, it means foster parents
can use it to inject themselves into the litigation involving their foster child, and other
provisions of the statute becomes wholly meaningless. The mother's analysis, however,
gives meaning to all parts of the statute. In that context, it all works together.
Because the Court construes and applies only one provision of the statute and
ignores what it does in the context of the statute as a whole, and thus lets the foster
parents intervene in the suit involving their foster child, I respectfully dissent. 3
TOM GRAY
Chief Justice
2The TDFPS has likewise filed a thorough brief that discusses the legal analysis and expresses some of the
concepts in a different manner than the mother. But I do not find it necessary to append excerpts of the
TDFPS's brief, but, like all briefs filed with the court, it is available on the Court's website.
3 If what the Court does here is the proper analysis, we missed it completely when the Court summarily
denied the mandamus petition filed almost a year ago by the foster parents. See In re Heuer, No. 10-22-
00003-CV, 2022 Tex. App. LEXIS 435 (Tex. App.—Waco Jan. 21, 2022,) (orig. proceeding). Unfortunately,
the parties were thus made to suffer through an entirely pointless trial and the child's life remains in limbo.
The legal issue involved in this case cries out for a definitive interpretation by the Supreme Court of Texas.
In the Interest of K.T.R., a Child Page 3
Dissenting Opinion delivered and filed December 21, 2022
In the Interest of K.T.R., a Child Page 4
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Argument
1. The trial court properly granted the motions to strike and the pleas
to the jurisdiction.
Although Appellants brief their challenges to the trial court’s ruling on
the motions to strike separately from their challenges to its ruling on the
pleas to the jurisdiction, these complaints are closely interrelated because
they both rest on the issue of whether Appellants have standing under
section 102.005 of the Family Code. A proper exercise in statutory
construction reveals that they do not.
Accordingly, the trial court properly struck their plea in intervention
and properly granted the Department’s and Mother’s1 pleas to the
jurisdiction challenging Appellants’ suit to terminate the parent-child
relationship and adopt K.T.R.
A. The principles for statutory construction depend on the clarity of the
statutory text
The Court’s primary goal in construing statutes is to give effect to the
Legislature's intent. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830,
1 Counsel refers to Appellee A.B. as “Mother” and to the child by her initials. See
TEX. R. APP. P. 9.8(b).
Appellee Mother’s Brief Page 11
Appendix to Dissenting Opinion, In Re K.T.R., a Child
838 (Tex. 2018); TIG Premier Ins. v. Pemberton, 127 S.W.3d 270, 273 (Tex.
App.—Waco 2003, pet. denied). The Court should apply the plain meaning
of the text unless the Legislature has provided a different definition, a
different definition is required by the context, or the plain meaning would
lead to an absurd result. Rodriguez, 547 S.W.3d at 838; In re State ex rel.
Parsons, No. 10-17-00216-CV, 2019 WL 156798, at *3 n.4 (Tex. App.—Waco
Jan. 9, 2019, orig. proceeding) (mem. op.).
Context is important. The Court reads statutes contextually to give
effect to every word, clause and sentence. Rodriguez, 547 S.W.3d at 838. The
Court thus considers the statutory scheme as a whole and how the statute in
question fits within the broader statutory scheme. The Court strives to give
the provision a meaning that is in harmony with other related statutes.
Rodriguez, 547 S.W.3d at 838; accord TIG Premier Ins., 127 S.W.3d at 273.
“Put differently, our objective is not to take definitions and
mechanically tack them together . . .[;] rather, we consider the context and
framework of the entire statute and meld its words into a cohesive reflection
of legislative intent.” Id. at 839 (quoting Cadena Comercial USA Corp. v. Tex.
Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017)).
Appellee Mother’s Brief Page 12
Appendix to Dissenting Opinion, In Re K.T.R., a Child
However, if the statute is ambiguous, the Court may resort to extrinsic
aids to construe the language at issue.2 See Rodriguez, 547 S.W.3d at 838;
accord TIG Premier Ins., 127 S.W.3d at 273. A statute is ambiguous when its
words are susceptible to 2 or more reasonable interpretations and legislative
intent cannot be discerned from the text itself. Rodriguez, 547 S.W.3d at 838.
Section 311.023 of the Code Construction Act sets out the extrinsic aids
a court may consider when construing a statute, including:
1) object sought to be attained;
2 But see TEX. GOV’T CODE § 311.023 (extrinsic aids may be considered by court
“whether or not the statute is considered ambiguous on its face”); Atmos Energy Corp. vi
City of Allen, 353 S.W.3d 156, 160 (Tex. 2011) (same); In re State ex rel. Parsons, No. 10-17-
00216-CV, 2019 WL 156798, at *3 n.4 (Tex. App.—Waco Jan. 9, 2019, orig. proceeding)
(same).
However, the Supreme Court has more recently strongly suggested that it is
constitutionally impermissible to consider extrinsic aids when construing an
unambiguous statute.
[S]ection 311.023 of the Code Construction Act permits courts to consider a
statute's legislative history whether or not the statute is considered
ambiguous on its face. Although this section may grant us legal permission,
not all that is lawful is beneficial. Constitutionally, it is the courts'
responsibility to construe statutes, not the legislature's. In fulfilling that
duty, we do not consider legislative history or other extrinsic aides to
interpret an unambiguous statute because the statute's plain language most
reliably reveals the legislature's intent. We have therefore repeatedly
branded reliance on extrinsic aids as improper and inappropriate when
statutory language is clear.
Tex. Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 136 (Tex. 2018) (quotation
marks, footnotes, and citations omitted).
Appellee Mother’s Brief Page 13
Appendix to Dissenting Opinion, In Re K.T.R., a Child
2) circumstances under which the statute was enacted;
3) legislative history;
4) common law or former statutory provisions, including laws on
the same or similar subjects;
5) consequences of a particular construction;
6) administrative construction of the statute; and
7) title (caption), preamble, and emergency provision.
TEX. GOV’T CODE § 311.023.
B. If section 102.005 is unambiguous, its plain language read in context
demonstrates that Appellants do not have standing
Like the statutes under consideration in Rodriguez, the language of
section 102.005, standing alone, “is fairly easily understood.” See Rodriguez,
547 S.W.3d at 838. But the Court must construe section 102.005 in light of
“the statutory scheme as a whole” and must strive to assign it “a meaning
that is in harmony with other related statutes.” Id.; accord TIG Premier Ins.,
127 S.W.3d at 273. When the Court does so, the Court should conclude that
sections 102.005(3) and (5) are properly construed as not applying to foster
parents.
1. The Court must consider the statutory scheme as a whole
Chapter 102 of the Family Code governs standing in suits affecting the
parent-child relationship. While Chapter 102 contains several statutes
Appellee Mother’s Brief Page 14
Appendix to Dissenting Opinion, In Re K.T.R., a Child
touching upon standing, sections 102.003, 102.004 and 102.005 are the critical
statutes to be considered in this analysis.
For a foster parent to have standing in a suit affecting the parent-child
relationship, the child must have been placed in their home by the
Department for at least 12 months. This requirement applies whether they
file an original SAPCR or intervene in a pending SAPCR.
Section 102.003(a)(12) includes this 12-month placement requirement
for standing to file an original SAPCR by a foster parent.3 TEX. FAM. CODE §
102.003(a)(12).
Section 102.004 provides that a foster parent may not intervene in a
pending SAPCR unless they meet the 12-month placement requirement. Id.
§ 102.004(b), (b-1). Section 102.004 provides in its entirety:
(a) In addition to the general standing to file suit provided by
Section 102.003, a grandparent, or another relative of the child
related within the third degree by consanguinity, may file an
original suit requesting managing conservatorship if there is
satisfactory proof to the court that:
3 Section 102.003(c) does provide an exception to this 12-month placement
requirement for a foster parent who “has been approved to adopt the child,” if the child
“is eligible to be adopted.” TEX. FAM. CODE § 102.003(c). This exception does not apply to
Appellants.
Appellee Mother’s Brief Page 15
Appendix to Dissenting Opinion, In Re K.T.R., a Child
(1) the order requested is necessary because the child's
present circumstances would significantly impair the child's
physical health or emotional development; or
(2) both parents, the surviving parent, or the managing
conservator or custodian either filed the petition or consented
to the suit.
(b) An original suit requesting possessory conservatorship may
not be filed by a grandparent or other person. However, the
court may grant a grandparent or other person, subject to the
requirements of Subsection (b-1) if applicable, 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 chapter 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.
(b-1) A foster parent may only be granted leave to intervene
under Subsection (b) if the foster parent would have standing to
file an original suit as provided by Section 102.003(a)(12).
(c) Possession of or access to a child by a grandparent is
governed by the standards established by Chapter 153.
TEX. FAM. CODE § 102.004.
Finally, section 102.005 provides in its entirety as follows:
An original suit requesting only an adoption or for termination
of the parent-child relationship joined with a petition for
adoption may be filed by:
(1) a stepparent of the child;
Appellee Mother’s Brief Page 16
Appendix to Dissenting Opinion, In Re K.T.R., a Child
(2) an adult who, as the 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;
(4) an adult who has adopted, or is the foster parent of and
has petitioned to adopt, a sibling of the child; or
(5) 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 § 102.005.
2. Read together, the statutes in Chapter 102 restrict standing for foster
parents to situations where the child has been placed with them for
at least 12 months
Under section 102.003(a)(12), foster parents have standing to file an
original SAPCR only after the child has been placed with them for 12
months. Under section 102.004, foster parents have standing to intervene in
a SAPCR only after the child has been placed with them for 12 months.
Under section 102.005, foster parents have standing to adopt a child if they
have petitioned to adopt a sibling of the child (because they have standing
to do so). These are the only standing provisions in Chapter 102 that apply
to foster parents.
Appellee Mother’s Brief Page 17
Appendix to Dissenting Opinion, In Re K.T.R., a Child
The Legislature added subsection (b-1) in 2017. Act of May 19, 2017,
85th Leg., R.S., ch. 341, § 1, 2017 Tex. Sess. Law Serv. 986, 986. Thus far, the
Dallas Court is the only appellate court to conduct an in-depth analysis of
the meaning and import of this statutory provision. That court has
concluded on several occasions that section 102.004 is the exclusive means
by which foster parents may intervene in a pending SAPCR. E.g. In re M.B.,
No. 05-19-00971-CV, 2019 WL 4509224, at *3 (Tex. App.—Dallas Sept. 19,
2019, pet.) (mem. op.); In re Nelke, 573 S.W.3d 917, 921 (Tex. App.—Dallas
2019, orig. proceeding) (“Section 102.004(b) applies to any person who seeks
to intervene in a pending suit even if that person may have had standing to
bring an original suit.”). The court further observed that “Subsection (b-1)
limits when a foster parent may be granted leave to intervene.” Nelke, 573
S.W.3d at 922 n.5. Cf. In re C.E.L., No. 09-21-00294-CV, 2022 WL 619670, at
*3-4 (Tex. App.—Beaumont Mar. 3, 2022, pet. filed) (mem. op.) (briefly
addressing 102.004 before holding that foster parents had standing under
section 102.005(3) and implicitly rejecting the Department’s argument that
Appellee Mother’s Brief Page 18
Appendix to Dissenting Opinion, In Re K.T.R., a Child
102.004(b-1) demonstrates legislative intent to exclude foster parents from
having standing under section 102.005(3)).4
Appellants’ counsel apparently agrees (or used to) that foster parents
may not intervene in pending CPS litigation unless the child has been placed
in their home for 12 months. “Foster parents are now prohibited from
intervening in ongoing CPS litigation unless the CPS case has been extended
beyond the statutory limit of 12-months due to ‘extraordinary’
circumstances.” Stephen Carl, Foster Parent Standing and Intervention in CPS
Litigation: The History and the Impact of Texas’s 2017 Amendment, 71 BAYLOR L.
REV. 673, 674 (2019).
• Section 102.004 “now bars a foster parent from intervening until the
same twelve-month statutory requirement of Section 102.003(a)(12) is
met.” Carl, Foster Parent Standing, 71 BAYLOR L. REV. at 687.
• “[The 2017 amendment] makes it almost impossible for a foster parent
to intervene in ongoing CPS litigation.” Carl, Foster Parent Standing, 71
BAYLOR L. REV. at 689.
Most of the subdivisions of section 102.005 plainly do not apply here.
Subdivision (1) applies only to step-parents; TEX. FAM. CODE § 102.005(1);
4 The Beaumont Court repeated an identical analysis a month later without even
citing its prior decision in C.E.L. See In re S.C., No. 09-21-00325-CV, 2022 WL 1037912, at
*3-4 (Tex. App.—Beaumont Apr. 7, 2022, no pet.) (mem. op.).
Appellee Mother’s Brief Page 19
Appendix to Dissenting Opinion, In Re K.T.R., a Child
subdivision (2) applies only to persons with whom a child has been placed
for adoption; id. § 102.005(2); and subdivision (4) applies only to persons
who have adopted a sibling of the child the subject of the suit or foster
parents who have petitioned to adopt the sibling. Id. § 102.005(4).
Section 102.005(3) grants standing to “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.” Id. § 102.005(3). If
this provision applied to foster parents like Appellants, it would render
useless sections 102.003(a)(12) and 102.004(b-1) which both expressly require
foster parents to have had possession of the child for 12 months before they
have standing.
This Court recognized as much in Torres where the Court considered
the interaction between sections 102.003(a)(12) and 102.003(a)(9). See In re
Torres, 614 S.W.3d 798 (Tex. App.—Waco 2020, orig. proceeding). There,
foster parents sought to intervene in a suit where grandparents had filed a
petition to modify a prior SAPCR order. The trial court denied the
grandparents’ plea to the jurisdiction and motion to strike the intervention.
Torres, 614 S.W.3d at 800-01. The grandparents sought mandamus relief with
this Court. Id. at 801.
Appellee Mother’s Brief Page 20
Appendix to Dissenting Opinion, In Re K.T.R., a Child
The foster parents had had possession of the children on multiple
occasions. During an initial suit filed by the Department of Family and
Protective Services in 2018, the foster parents had had possession of the
children “for approximately ten and a half months.” Id. at 800. After the
children were returned to their mother, they moved to Oklahoma. During
that period, the foster parents had ongoing communication with the children
by telephone and video conferencing, and they had possession of the
children for 14 days in July and 7 days in November 2019 in addition to other
weekend visits. Id.
The cumulative total of possession by the foster parents was less than
12 months. Instead, they argued that they had standing under section
102.003(a)(9) which grants standing to “a person, other than a foster parent,”
who has possession of the child for at least 6 months. Id. at 802 (citing TEX.
FAM. CODE § 102.003(a)(9)). The Court rejected this contention.
The status held by a party at the time of the filing of their
pleading is not determinative for purposes of establishing
standing. To hold otherwise would give any foster parent who
had children in their home for more than six but less than twelve
months from whom children were removed the ability to file a
petition in intervention solely because they were no longer the
foster parents.
Appellee Mother’s Brief Page 21
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Therefore, we hold that the Speedys were required to either
establish that they had “actual care, control, or possession” of the
children for six months exclusive of their time as foster parents
pursuant to Section 102.003(a)(9) or that they had “actual care,
control, or possession” of the children for twelve months
including the time they were foster parents pursuant to Section
102.003(a)(12).
Id. at 803.
The same principle should apply to Appellants. When a person’s
possession of a child is solely because of their status as a foster parent, they
should not be permitted to claim standing under a different statute than
section 102.003(a)(12) unless they have had possession of the child for a
sufficient period “exclusive of their time as foster parents.” See id.
Finally, section 102.005(5) confers standing on “another adult” whom
the trial court determines “has had substantial past contact with the child
sufficient to warrant standing to do so.” TEX. FAM. CODE § 102.005(5).
To begin with, this subdivision refers to “another adult” which
suggests that it means an adult other than those identified in the first 4
subdivisions of the statute. Because subdivision (4) refers specifically to
foster parents, this would necessarily exclude them from inclusion in
subdivision (5).
Appellee Mother’s Brief Page 22
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Next, the Court should hold, consistent with Torres, that Appellants
must establish “substantial past contact” under section 102.005 “exclusive of
their time as foster parents.” See Torres, 614 S.W.3d at 803. Otherwise, this
would render sections 102.003(a)(12) and 102.003(b-1) meaningless.
Finally, with respect to section 102.005 generally, that statute provides
standing to file a suit only for termination and/or adoption. TEX. FAM. CODE
§ 102.005. Appellants thus contend that section 102.005 is the more specific
provision than section 102.003 and controls here because it applies to a
specific category of suits. However, their focus is misplaced. The question of
standing focuses on whether a particular person or entity may bring the
claim at issue, i.e., whether they are “personally aggrieved.” See
DaimlerChrysler v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008). Thus, the
analysis should look to the person or entity at issue rather than the claim. In
this context, section 102.003 is the more specific statute because of its highly
specific laundry list of persons who have standing to file a SAPCR.
Accordingly, when this Court reads sections 102.005(3) and (5) in the
context of the statutory scheme for standing established in Chapter 102, the
Court should conclude that foster parents such as Appellants cannot assert
standing under these provisions unless they can establish possession of or
Appellee Mother’s Brief Page 23
Appendix to Dissenting Opinion, In Re K.T.R., a Child
substantial contact with the child separate and apart from their possession
of and contact with the child as foster parents. See Torres, 614 S.W.3d at 803.
Here, Appellants cannot establish standing outside of their time as
foster parents of K.T.R. Thus, they cannot establish standing under section
102.005(3) or (5).
C. If section 102.005 is ambiguous, the relevant extrinsic aids
demonstrate that Appellants do not have standing
A compelling argument can be made that section 102.005 is ambiguous
for each of the reasons already stated but particularly because the parties
here advance 2 reasonable competing interpretations of the statute. See
Rodriguez, 547 S.W.3d at 838 (“A statute is ambiguous if its words are
susceptible to two or more reasonable interpretations and we cannot discern
legislative intent from the language alone.”).
If the statute is ambiguous, this Court can resort to extrinsic aids to
ascertain the Legislature’s intent. See Rodriguez, 547 S.W.3d at 838; accord TIG
Premier Ins., 127 S.W.3d at 273. The legislative history for Chapter 102 is the
most important extrinsic aid for the Court’s consideration. See TEX. GOV’T
CODE § 311.023(3).
Appellee Mother’s Brief Page 24
Appendix to Dissenting Opinion, In Re K.T.R., a Child
1. Legislative history—section 11.03
The 69th Legislature enacted Texas’s current framework for standing
in SAPCR’s by its enactment of the former section 11.03.
Section 11.03 provided a 4-part framework for standing. Under section
11.03(a), the Legislature promulgated a laundry list of persons or entities
with standing to file an original SAPCR. Act of May 25, 1985, 69th Leg., R.S.,
ch. 802, § 1, 1985 Tex. Gen. Laws 2841, 2842 (amended 1989).5 That original
laundry list included: (1) a parent; (2) the child through an authorized
representative; (3) a custodian or person with visitation rights under a court
order; (4) a guardian; (5) a governmental entity; (6) any authorized agency;
(7) an alleged or probable father of an illegitimate child; (8) “a person who
had actual possession and control of the child for at least six months
immediately preceding the filing of the petition”; or (9) a person designated
5 The Legislature amended section 11.03(a) twice. In 1989, the Legislature amended
section 11.03(a)(7) to include more modern and politically correct nomenclature for a
child born out of wedlock, namely, granting standing to “a man alleging himself to be the
biological father of a child who has no presumed father.” Act of May 29, 1989, 71st Leg.,
R.S., ch. 375, § 2, 1989 Tex. Gen. Laws 1477, 1477-78. In 1993, the Legislature added a 10th
category of persons to the laundry list, namely, “a person with whom the child and the
child's guardian, managing conservator, or parent have resided for at least six months
immediately preceding the filing of the petition and the child's guardian, managing
conservator, or parent is deceased at the time of the filing of the petition.” Act of May 7,
1993, 73d Leg., R.S., ch. 168, § 1, 1993 Tex. Gen. Laws 321, 321.
Appellee Mother’s Brief Page 25
Appendix to Dissenting Opinion, In Re K.T.R., a Child
as managing conservator in a relinquishment affidavit or given written
consent to adopt. Id.Section 11.03(b) authorized a grandparent or “any other person
deemed by the court to have had substantial past contact with the child” to
file an original suit for managing conservatorship.6 Id.Section 11.03(c) authorized a grandparent or “any other person” with
substantial past contact to intervene in a pending SAPCR and request
possessory conservatorship. Id.Finally, section 11.03(d) authorized the following persons to file an
original suit for adoption or for termination and adoption:
(1) a stepparent of the child;
(2) an adult who, as the result of a placement for adoption, has
had actual possession and control of the child at any time during
the 30-day period immediately preceding the filing of the
petition;
(3) an adult who has had actual possession and control of the
child for at least two months during the three-month period
immediately preceding the filing of the petition;
6 The 73rd Legislature also amended section 11.03(b) by deleting other persons with
“substantial past contact” and conferring standing solely on grandparents to seek
managing conservatorship. Act of May 7, 1993, 73d Leg., R.S., ch. 168, § 2, 1993 Tex. Gen.
Laws 321, 322.
Appellee Mother’s Brief Page 26
Appendix to Dissenting Opinion, In Re K.T.R., a Child
(4) another adult whom the court determines to have had
substantial past contact with the child sufficient to warrant
standing to do so.
Id.These four provisions were to be read together. See Rodriguez, 547
S.W.3d at 838. Subsection (a) provided a laundry list of 9 (later 10) categories
of persons or entities who had standing to file an original SAPCR. Subsection
(b) provided standing for a suit seeking managing conservatorship for
grandparents and other persons with “substantial past contact.”
Grandparents were not in the laundry list of subsection (a). The “other
persons” contemplated by subsection (b) should necessarily exclude those
included in the laundry list because they already have standing to bring an
original SAPCR. If a person included in the laundry list were considered to
have also been included under subsection (b), that would render the general
standing provision meaningless with respect to those persons. The same is
true for “intervention standing” under subsection (c).
The same is also true for standing of “adults” under subsection (d) to
file suit for termination and/or adoption. Again, a stepparent (identified in
(d)(1)) is not included in the laundry list. The terms “adult” and “another
adult” should likewise be construed to exclude those identified in the
Appellee Mother’s Brief Page 27
Appendix to Dissenting Opinion, In Re K.T.R., a Child
laundry list. If a person included in the laundry list were considered to have
also been included under subsection (d), that would render the general
standing provision meaningless with respect to those persons.
This reading of section 11.03(d) also directly addresses Appellants’
contention that section 102.005 is a more specific provision that controls here
because it applies to a specific category of suits. In this context, section
102.003 (and its predecessor article 11.03(a)) is the more specific statute
because of its highly specific laundry list of persons who have standing to
file a SAPCR.
Accordingly, in construing the former section 11.03, the Court must
conclude that the term “adult” or “another adult” as set out in section
11.03(d) refers to persons other than those included in the laundry list of
section 11.03(a).
2. Legislative history—the 1995 recodification
When the 74th Legislature repealed the former Title 2 of the Family
Code and recodified it as Title 5, the Legislature broke the respective
standing provisions of former section 11.03 out into 3 separate statutes—
sections 102.003, 102.004 and 102.005. See Act of Apr. 6, 1995, 74th Leg., R.S.,
ch. 20, § 1, secs. 102.003-102.005, 1995 Tex. Sess. Law Serv. 113, 125. This was
Appellee Mother’s Brief Page 28
Appendix to Dissenting Opinion, In Re K.T.R., a Child
a nonsubstantive recodification. Jones v. Fowler, 969 S.W.2d 429, 431 (Tex.
1998).
Accordingly, the legislative decision to divide the standing provisions
of former section 11.03 into 3 different statutes did not alter their meaning.
3. Legislative history—subsequent amendments
Since 1995, the Legislature has enacted several significant7
amendments to these statutes that impact their construction.
In 1997, the Legislature gave foster parents standing to file an SAPCR
if the child had been in their home for at least 18 months. Act of May 19,
1997, 75th Leg., R.S., ch. 575, § 3, 1997 Tex. Sess. Law Serv. 2012, 2012-13.
Two years later, the Legislature reduced the length of placement to 12
months for foster parents—enacting the statute as it currently exists. Act of
May 30, 1999, 76th Leg., R.S., ch. 1390, § 2, 1999 Tex. Sess. Law Serv. 4696,
4696-97.
In 2007, the Legislature amended section 102.005 to include a standing
provision for “an adult who has adopted, or is the foster parent of and has
7 For the sake of completeness, the Legislature has enacted additional amendments
to the relevant statutes beyond the ones discussed here, but the amendments discussed
herein have the most relevance to the issues presented.
Appellee Mother’s Brief Page 29
Appendix to Dissenting Opinion, In Re K.T.R., a Child
petitioned to adopt, a sibling of the child.” Act of May 28, 2007, 80th Leg.,
R.S., ch. 1406, § 3, 2007 Tex. Sess. Law Serv. 4800, 4800-01.
And finally, in 2017, the Legislature amended section 102.004 to
provide that a foster parent may not intervene in a pending SAPCR unless
the child has been placed with them for at least 12 months. Act of May 19,
2017, 85th Leg., R.S., ch. 341, § 1, 2017 Tex. Sess. Law Serv. 986, 986.
The 1997 amendment giving foster parents standing for the first time
to file any kind of original SAPCR was significant because it added foster
parents to the laundry list and specified the conditions under which foster
parents may file a SAPCR. At that point (based on the construction discussed
above regarding former section 11.03), foster parents could assert standing
in a SAPCR only if they qualified according to the terms of section
102.003(a)(12). Because they were added to the laundry list, the provisions
of sections 102.004 and 102.005 no longer applied.
The 1999 amendment shortened the period during which foster
parents may qualify for standing.
The 2007 amendment created standing for a unique subset of foster
parents to file a termination and/or adoption suit, namely, any foster parent
who “has petitioned to adopt . . . a sibling of the child.”
Appellee Mother’s Brief Page 30
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Finally, the 2017 amendment restricted when foster parents may
intervene in a SAPCR as opposed to filing an original SAPCR. As this Court
has observed, a person’s standing to intervene is generally commensurate
with their standing go file an original suit. In re A.C., No. 10-15-00192-CV,
2015 WL 6437843, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.).
The 2017 amendment codified this principle for foster parents. Thus, a foster
parent may not intervene in a pending SAPCR unless they have standing
under section 102.003(a)(12). TEX. FAM. CODE § 102.004(b-1); see M.B., 2019
WL 4509224, at *3; Nelke, 573 S.W.3d at 922 n.5; see also Carl, Foster Parent
Standing, 71 BAYLOR L. REV. at 674, 687, 689.
Accordingly, when the Court considers the legislative history of these
statutes, the Court should conclude that foster parents must establish their
standing under section 102.003(a)(12). Further, because foster parents are
included in the laundry list of persons with standing in SAPCR cases under
section 102.003, the provisions of sections 102.004 and 102.005 apply to them
in only two respects. First, section 102.004 limits their ability to intervene in
pending SAPCR’s. And second, section 102.005(4) provides standing for a
narrow subset of foster parents who have petitioned to adopt a sibling of the
child whom they seek to adopt. The provisions of section 102.005 referring
Appellee Mother’s Brief Page 31
Appendix to Dissenting Opinion, In Re K.T.R., a Child
to an adult with “actual possession and control of the child” and “another
adult” with “substantial past contact” simply do not apply to foster parents.8
D. Section 102.004 is the only means of intervention in a SAPCR for
foster parents
Appellants claim that section 102.004(b) does not apply to persons
seeking relief other than possessory conservatorship. Appellants’ Petition at
33. They are wrong.
“Section 102.004(b) applies to any person who seeks to intervene in a
pending suit even if that person may have had standing to bring an original
suit.” Nelke, 573 S.W.3d at 921.
Subsection (b) provides:
An original suit requesting possessory conservatorship may not
be filed by a grandparent or other person. However, the court
may grant a grandparent or other person, subject to the
requirements of Subsection (b-1) if applicable, 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 chapter 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.
8 This Court reached the opposite conclusion in A.C., but the Court issued that
decision before the 2017 amendments to section 102.004. In re A.C., No. 10-15-00192-CV,
2015 WL 6437843, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.).
Appellee Mother’s Brief Page 32
Appendix to Dissenting Opinion, In Re K.T.R., a Child
TEX. FAM. CODE § 102.004(b).
Subsection (b) begins with a sentence prohibiting the filing of an
original suit seeking only possessory conservatorship by non-parents. But
the remainder of the subsection grants standing to non-parents to intervene
in a SAPCR if they have “substantial past contact with the child” and if they
make a showing that appointment of one or both parents as managing
conservator(s) would significantly impair the child.
The statute thus contemplates that the non-parent intervenor would be
seeking, at minimum, appointment as managing conservator because the
parents are unsuitable to serve in this capacity. Texas courts have regularly
observed and have long held that non-parents may intervene under
subsection (b) and seek managing conservatorship. E.g., In re S.M.D., 329
S.W.3d 8, 14 (Tex. App.—San Antonio 2010, pet. dism’d by agr.); Whitfield v.
Whitfield, 222 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet.);
In re Hidalgo, 938 S.W.2d 492, 496 (Tex. App.—Texarkana 1996, no writ).
The trial court properly struck Appellants’ petition in intervention to
the extent Appellants sought to intervene under section 102.005 of the
Family Code because section 102.004(b) provides the sole basis for
intervention by a foster parent in a SAPCR.
Appellee Mother’s Brief Page 33
Appendix to Dissenting Opinion, In Re K.T.R., a Child
E. C.E.L. was wrongly decided
Appellants rely heavily on the decision of the Beaumont court in C.E.L.
to support their contentions. However, based on the above analyses, this
Court should conclude that the Beaumont court’s cursory analysis failed to
fully address or consider the relevant statutes and their legislative history
and, as a result, is a poorly reasoned decision.
The Beaumont court did pay lip service to arguments similar to those
raised by the Mother and the Department in this case. The court observed,
“The Department argues that foster-family specific amendments to sections
102.03 and 102.004 of the Family Code demonstrate the Legislature's intent
to exclude foster parents from section 102.005(3).” C.E.L., 2022 WL 619670, at
*2.
Then, the court reviewed the statutory history of sections 102.003,
102.04 and 102.005 since the Legislature first granted standing to foster
parents in 1997. Id., 2022 WL 619670, at *3-4. But the court failed to consider
the statutory predecessor to these statutes.
Next, the court cited 2 cases before concluding that foster parents can
establish standing to file a suit for termination and/or adoption under
Appellee Mother’s Brief Page 34
Appendix to Dissenting Opinion, In Re K.T.R., a Child
section 102.005(3) if they have had possession of the child for at least 2
months. Id., 2022 WL 619670, at *4.
The Beaumont court first cited a 2009 decision of the Amarillo court
that held with no analysis that foster parents can establish standing under
section 102.005(3). Id. (citing In re J.H.M., No. 07-07-00109-CV, 2009 WL
5174364 (Tex. App.—Amarillo Dec. 29, 2009, no pet.) (mem. op.)). The
Amarillo court held:
Foster parents now have a couple of avenues to the courthouse.
Under § 102.003 of the Family Code, they can bring an original
suit affecting the parent-child relationship (SAPCR) if the child
was placed with them by the “Department of Protective and
Regulatory Services” and has lived with them “for at least
[twelve] months ending not more than [ninety] days preceding
the date of the filing of the petition.” TEX. FAM. CODE ANN. §
102.003(a)(12) (Vernon Supp. 2009). Under § 102.005 of the same
Code, foster parents who have not had possession of the child
for at least twelve months, ninety days before they file suit may
nevertheless have standing to request termination and adoption
if they have “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.” Id. § 102.005(3).
J.H.M., 2009 WL 5174364, at *4.
Curiously, no court other than the Beaumont court has cited J.H.M. for
the proposition that a foster parent has standing to seek termination and/or
Appellee Mother’s Brief Page 35
Appendix to Dissenting Opinion, In Re K.T.R., a Child
adoption under section 102.005(3) if they have had possession of the child at
least 2 months—not even the Amarillo court itself.
Further, the Amarillo court issued this decision before the Legislature
amended section 102.004 to add subsection (b-1) and prevent foster parents
from intervening in a SAPCR unless they have had possession of the child
for at least 12 months.
And finally, the Amarillo court issued this decision without any
meaningful effort to engage in statutory construction considering the
statutory scheme as a whole or its legislative history.
For each of these reasons, the Amarillo court’s decision in J.H.M.
provides at best questionable support for the Beaumont court’s decision in
C.E.L.
The Beaumont court also relied on a 2019 decision of the Fort Worth
court that does NOT involve foster-parent intervention. C.E.L., 2022 WL
619670, at *4 (citing In re Y.J., No. 02-19-00235-CV, 2019 WL 6904728 (Tex.
App.—Fort Worth Dec. 19, 2019, pet. denied) (mem. op.)). In Y.J., a couple
(the “Bs”) who had already adopted Y.J.’s half-brother intervened in a
termination suit initiated by the Department on behalf of Y.J. The Bs sought
termination of parental rights and to adopt Y.J. under section 102.005(4).
Appellee Mother’s Brief Page 36
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Because Y.J. is Native American, the Navajo Nation opposed the
intervention. Instead, the Navajo Nation asked that Y.J. be placed with her
mother’s great aunt who is also a Native American. Y.J., 2019 WL 6904728,
at *3. The trial court ultimately terminated the mother’s parental rights and
appointed the Bs and the great aunt as joint managing conservators. Id., 2019
WL 6904728, at *4.
On appeal, the Navajo Nation challenged the intervention by the Bs
under section 102.005(4) and argued that the statute authorizes only an
original suit and only for termination and/or adoption (as opposed to
conservatorship). The Fort Worth court rejected these contentions for several
reasons. Id., 2019 WL 6904728, at *5-7. Among other things, the court
recognized that the Bs had standing to file an original suit under section
102.005(4) because they had adopted Y.J.’s half-brother. Their standing was
not as foster parents but as persons who had adopted the child’s sibling.
Here, however, Appellants cannot establish original standing under section
102.005(4). Nor could the appellants in C.E.L. Cf. C.E.L., 2022 WL 619670, at
*4. Thus, the decision in Y.J. offers little support for the Beaumont court’s
decision in C.E.L.
Appellee Mother’s Brief Page 37
Appendix to Dissenting Opinion, In Re K.T.R., a Child
Regardless, the Beaumont court concluded by holding that, because
the foster parents in that case had had possession of the children for at least
2 months, they had standing under section 102.005(3)—even though they did
not have standing under section 102.003(a)(12) or 102.004(b-1). However,
this construction does not properly give consideration to the entire statutory
scheme and renders sections 102.003(a)(12) and 102.004(b-1) meaningless.
The Beaumont court’s decision is poorly reasoned, and this Court
should decline to follow it.
F. This Court should affirm the judgment
For each of the reasons stated, Appellants failed to establish standing
under section 102.005(3) or (5). The trial court thus properly struck their plea
in intervention and properly granted the Department’s and Mother’s pleas
to the jurisdiction challenging Appellants’ suit to terminate the parent-child
relationship and adopt K.T.R.
Accordingly, this Court should affirm the judgment. See TEX. R. APP. P.
43.2(a).
Appellee Mother’s Brief Page 38