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
MEMORANDUM OPINION
K.T.R.’s former foster parents (the Fosters) appeal the trial court’s order granting
the motions to strike their petition in intervention and petition for adoption. We will
reverse and remand.
Background
The underlying facts are not disputed. K.T.R. was removed from Mother by the
Department of Family and Protective Services (the Department), and the associate judge
granted the Department temporary managing conservatorship over K.T.R. K.T.R.’s
father is deceased. The Department placed K.T.R. with the Fosters on December 4, 2020.
On December 1, 2021, Mother filed a Motion for Change in Placement. A hearing on
Mother’s motion was held on December 2, 2021. The Fosters were not given ten days’
notice of the hearing but were allowed to participate after receiving knowledge of the
hearing although they had not intervened in the case. The parties conceded at the hearing
that, factually, the Fosters had past substantial contact with K.T.R., but the Department
and Mother did not concede that, legally, the Fosters had standing. The associate judge
granted Mother’s motion and ordered that K.T.R. be placed in another foster home (the
Second Foster).
On December 3, 2021, the Department removed K.T.R. from the Fosters’ home
pursuant to the associate judge’s order. On December 6, 2021, the Fosters filed a petition
in intervention; they also filed an original petition for adoption in a new cause number.
In both petitions, the Fosters recited Sections 102.003(a)(12) and 102.005(5) of the Family
Code as the basis for standing. See TEX. FAM. CODE ANN. §§ 102.003(a)(12), 102.005(5). On
December 9, 2021, the Fosters then filed a first amended petition in intervention and a
first amended petition to terminate and adopt. In both amended petitions, the Fosters
based standing on Sections 102.003(a)(12), 102.005(3), and 102.005(5). See id. §§
102.003(a)(12), 102.005(3), 102.005(5). The associate judge consolidated both cases on
December 13, 2021. On December 29, 2021, the associate judge then signed an order
granting the following: (1) the Joint Motion to Strike and Objection to Petition in
Intervention filed by the Department and the Attorney Ad Litem; (2) the Motion to Strike
and Objection to Petition in Intervention filed by Mother; (3) the Plea to the Jurisdiction
and Motion to Strike the Fosters’ petition for adoption filed by the Attorney Ad Litem;
and (4) the Plea to the Jurisdiction and Motion to Strike the Fosters’ petition for adoption
In re K.T.R. Page 2
filed by the Department. The Fosters did not request a de novo hearing of the associate
judge’s order.
On January 10, 2022, the Fosters filed an original petition for mandamus in this
Court in Cause Number 10-22-00003-CV, seeking revocation of the associate judge’s
order removing K.T.R. from their care and the associate judge’s order granting the
motions to strike and pleas to the jurisdiction. The Fosters’ petition was denied on
January 21, 2022. See In re Heuer, No. 10-22-00003-CV, 2022 WL 195659, at *1 (Tex. App.—
Waco Jan. 21, 2022, orig. proceeding) (mem. op.).
On March 7, 2022, the Fosters filed a second petition in intervention. The second
petition referenced only Section 102.005(5) as the basis for standing. See TEX. FAM. CODE
ANN. § 102.005(5). The Department and Mother filed motions to strike the second petition
in intervention. The associate judge declined to consider the Fosters’ second intervention,
noting “the recent intervention alleges no new facts, nor different statutes from those
already litigated.” The Fosters then requested a de novo hearing before the referring
court, identifying the issue to be reviewed as: “The Court erred in issuing her findings
which has the effect of granting the Motions to Strike Intervenor’s Petition in Intervention
that was filed on March 7, 2022.” After a de novo hearing, the district court signed an
order on May 13, 2022, granting the motions to strike the second petition in intervention.
The associate judge’s final order appointed Mother and the Second Foster, a non-
relative, as joint managing conservators of K.T.R. and removed the Department as
temporary managing conservator. Mother was granted supervised visitation with K.T.R.
In re K.T.R. Page 3
for three hours on the first and third Saturdays of the month. The Fosters then initiated
the present appeal.
Issues
The Fosters present the following issues: 1
1) Whether the trial court abused its discretion in granting the Motions
to Strike?
2) Whether the trial court abused its discretion in granting the Plea to
the Jurisdiction?
3) Whether Appellants’ due process rights were violated when the trial
court conducted a placement change hearing without providing
Appellants with 10 days’ notice as required by Texas Family Code §
263.0021 and subsequently denied Appellants standing to intervene,
in part, based upon the argument that Appellants only had “11
months and 30 days” of time with the child?
Issues One and Two
Both Issues One and Two concern whether the Fosters have standing.
AUTHORITY
Subject-matter jurisdiction is essential to the authority of a court to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
Standing is a component of subject-matter jurisdiction and is a
constitutional prerequisite to maintain[ing] suit. See In re H.S., 550 S.W.3d
151, 155 (Tex. 2018). In assessing standing, the merits of the underlying
claims are not at issue. See [id.] (“Here, the merits of Grandparents’
claims—that is, whether they should be appointed Heather’s managing
conservators with the right to designate her primary residence—have not
yet been considered by any court and are not before us.”).
1Although the Fosters do not concede that they did not have custody of K.T.R. for “12 months ending not
more than 90 days preceding the date of the filing of the petition” as required by Section 102.003(12) of the
Family Code, the Fosters do not raise this issue on appeal. See TEX. FAM. CODE ANN. § 102.003(a)(12). The
Fosters also do not assert they had standing under Section 102.003(c) as K.T.R. had not been approved for
adoption. Id. § 102.003(c).
In re K.T.R. Page 4
The party asserting standing bears the burden of proving that issue.
In re A.D.T., 588 S.W.3d 312, 316 (Tex. App.—Amarillo 2019, no pet.); In re
S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism’d). In
assessing standing, a reviewing court should look to the pleadings but may
consider relevant evidence of jurisdictional facts when necessary to resolve
the jurisdictional issues raised. In re H.S., 550 S.W.3d at 155. Standing is a
question of law that the court reviews de novo. Id. If a party does not have
standing, the court is deprived of subject matter jurisdiction, and the merits
of the party’s claims cannot be litigated or decided. [Id.]
In re Torres, 614 S.W.3d 798, 801 (Tex. App.—Waco 2020, no pet.).
As a general rule, an individual’s standing to intervene is
commensurate with that individual's standing to file an original lawsuit.
Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.]
2007, no pet.). A party’s standing to file an original suit affecting the parent-
child relationship is typically governed by sections 102.003 (general
standing), 102.004, and 102.005 (additional standing for others) of the Texas
Family Code. See TEX. FAM. CODE ANN. §§ 102.003–.005 (West 2014).
In re A.C., Nos. 10-15-00192-CV & 10-15-00193-CV, 2015 WL 6437843, at *9 (Tex. App.—
Waco Oct. 22, 2015, no pet.) (mem. op.).
Standing in a suit affecting the parent-child relationship (“SAPCR”)
is governed by the Family Code. See In re E.G.L., 378 S.W.3d 542, 547 (Tex.
App.—Dallas 2012, pet. denied). A party seeking relief in a SAPCR must
allege and establish standing within the parameters of the language used in
the relevant statute. See In re Tinker, 549 S.W.3d 747, 751 (Tex. App.—Waco
2017, orig. proceeding). “Because standing to bring a SAPCR is governed
by statute, we apply statutory-interpretation principles in determining
whether a plaintiff falls within the category of persons upon whom such
standing has been conferred.” In re H.S., 550 S.W.3d at 155.
In re Torres, 614 S.W.3d at 801.
. . . When interpreting statutes, we presume the Legislature’s intent
is reflected in the words of the statute and give those words their fair
meaning. In re C.J.N.–S., 540 S.W.3d 589, 591 (Tex. 2018). We analyze
statutes “as a cohesive, contextual whole, accepting that lawmaker-authors
chose their words carefully, both in what they included and in what they
excluded.” Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex.
In re K.T.R. Page 5
2017); see also R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean
Water, 336 S.W.3d 619, 628 (Tex. 2011) (“When the Legislature uses a word
or phrase in one portion of a statute but excludes it from another, the term
should not be implied where it has been excluded.”).
In re H.S., 550 S.W.3d at 155.
If the language of the statute is unambiguous, we do not consider extrinsic aids
such as legislative history “because the statute’s plain language most reliably reveals the
legislature’s intent.” Tex. Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 136
(Tex. 2018); see also EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 749 (Tex. 2020) (“We turn to
extrinsic sources only if the statute is ambiguous or if applying the statute’s plain
meaning would produce an absurd result.”).
As applicable here, Section 102.003 of the Family Code, entitled “General Standing
to File Suit,” provides, in part:
(a) An original suit may be filed at any time by:
....
(9) a 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; [or]
....
(12) a person who is the foster parent of a child placed by the
Department of Family and Protective Services in the person’s home
for at least 12 months ending not more than 90 days preceding the
date of the filing of the petition;
....
(c) Notwithstanding the time requirements of Subsection (a)(12), a person
who is the foster parent of a child may file a suit to adopt a child for whom
the person is providing foster care at any time after the person has been
In re K.T.R. Page 6
approved to adopt the child. The standing to file suit under this subsection
applies only to the adoption of a child who is eligible to be adopted.
TEX. FAM. CODE ANN. § 102.003.
As applicable here, Section 102.004 of the Family Code, entitled “Standing for
Grandparent or Other Person,” provides, in part:
(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).
Id. § 102.004.
As applicable here, Section 102.005 of the Family Code, entitled “Standing to
Request Termination and Adoption,” provides, in part:
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:
....
(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]
....
(5) another adult whom the court determines to have had substantial
past contact with the child sufficient to warrant standing to do so.
In re K.T.R. Page 7
Id. § 102.005.
DISCUSSION
The Fosters asserted standing under both Sections 102.005(3) and (5) in their first
amended petition in intervention and first amended petition for adoption and
termination. The Fosters possessed standing because they met the requirements of
Section 102.005(3)—they had actual possession and control of K.T.R. “for not less than
two months during the three-month period preceding the filing of” their first amended
petition for termination and adoption. Id. § 102.005(3). Because they had standing to file
suit, they also had standing to intervene. In re A.C., 2015 WL 6437843, at *9.
The plain language of the Family Code allows foster parents to establish standing
other than through Section 102.003(a)(12). See In re C.E.L., No. 09-21-00294-CV, 2022 WL
619670, at *2 (Tex. App.—Beaumont Mar. 3, 2022, pet. denied) (mem. op.). In re C.E.L. is
a factually similar case in which the Beaumont Court of Appeals concludes that Section
102.005(3) does not exclude foster parents from filing a petition for termination and
adoption. Id. at *3–4. While the Legislature amended Section 102.005 in 2007, “the
Legislature neither limited subsection (3) to exclude foster parents nor made the other
subsections exclusive means through which a foster parent could petition for termination
and adoption.” Id. at *4.
Our Torres opinion is not in conflict because Torres involves an analysis of
subsections (a)(9) and (a)(12) of Section 102.003 rather than the interplay between Sections
In re K.T.R. Page 8
102.003(a)(12) and 102.005(3) and (5). See TEX. FAM. CODE ANN. §§ 102.003(a)(9),
102.003(a)(12), 102.005(3), 102.005(5); see also In re Torres, 614 S.W.3d at 803.
After a de novo review, we conclude that the Fosters had standing under Section
102.005(3) to file their first original petition for termination and adoption, which also gave
them standing to intervene in the SAPCR filed by the Department. The trial court erred
in determining that the Fosters did not have standing. We sustain the Fosters’ first and
second issues. We express no opinion regarding the ultimate merits of their claims.
Because we sustain the Fosters’ first and second issues, we need not address Issue
Three.
Conclusion
Having sustained the Fosters’ first and second issues, we reverse the Final Order
in Suit Affecting the Parent-Child Relationship signed on June 21, 2022, and we remand
the case to the trial court for further proceedings not inconsistent with this opinion.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Reversed and remanded
Opinion delivered and filed December 21, 2022
[CV06]
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