in the Interest of C.E.L. Jr. and S.O.L.

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00294-CV
__________________
IN THE INTEREST OF C.E.L. JR. AND S.O.L.
__________________________________________________________________
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. C200227-D
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MEMORANDUM OPINION
After striking a petition in intervention filed by former foster parents J.S.G.
and A.G. (collectively referred to as “Foster”) for lack of standing, the trial court
terminated the parental rights of D.M. and C.E.L. Sr. to their children, C.E.L. Jr. and
S.O.L.1 In this appeal, Foster argues the trial court erred by ruling they lacked
standing to petition for termination and adoption under section 102.005(3) of the
Texas Family Code. See Tex. Fam. Code Ann. § 102.005(3) (“An original suit
1
We identify children and their family members in parental-rights termination
cases by using an alias to protect the identity of the children. See Tex. R. App. P.
9.8(a), (b).
1
requesting only an adoption or for termination of the parent-child relationship joined
with a petition for adoption may be filed by . . . 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[.]”).
Background
On March 26, 2020, the Department filed Trial Cause Number C200227-D,
In the Interest of C.E.L. Jr., an Original Petition for Protection of a Child, For
Conservatorship, and For Termination in Suit Affecting the Parent-Child
Relationship. In the suit, the Department sought termination of the parental rights of
D.M. and C.E.L. Sr. and appointment of the Department as sole managing
conservator of C.E.L. Jr. The trial court adjudicated C.E.L. Sr. to be the father of
C.E.L. Jr., on April 30, 2020.
On November 20, 2020, the Department filed Trial Cause Number C200696-
D, In the Interest of S.O.L., an Original Petition for Protection of a Child, For
Conservatorship, and For Termination in Suit Affecting the Parent-Child
Relationship. In the suit, the Department sought termination of the parental rights of
D.M. and C.E.L. Sr. and appointment of the Department as sole managing
conservator of S.O.L. A supporting affidavit stated S.O.L. had been born the
previous day and that he and his mother tested positive for methamphetamines.
2
On April 26, 2021, Foster filed an Original Petition in Intervention and for
Termination of Parental Rights in Trial Cause Numbers C200227-D and C200696-
D. In each case, Foster alleged standing as adults who 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. See Tex. Fam. Code Ann. § 102.005(3). In each
case, the Department moved to strike and dismiss the plea in intervention. The
Department argued that Foster cannot maintain standing under section 102.005(3)
because section 102.003(a)(12) grants standing specifically to foster parents of a
child placed in their care for at least twelve months ending not more than 30 days
before the filing of the petition. Compare Tex. Fam. Code. Ann. § 102.005(3), with
§ 102.003(a)(12). The Department further argued that section 102.005 did not apply
because the Department, not Foster, had actual control of the child through a court-
ordered temporary managing conservatorship. The Department maintained section
102.005 does not apply because the Department is seeking termination and
conservatorship, not termination and adoption.
The trial court heard Fosters’ motion in intervention on May 24, 2021. Foster
admitted that because they had the children for less than 12 months they could not
establish standing to file an original suit affecting the parent-child relationship under
section 102.003(a)(12) of the Texas Family Code. They argued they established
standing to file a suit for termination and adoption under section 102.005(3).
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On July 8, 2021, the trial court signed orders striking the interventions and
dismissing Foster as parties to the cases. On July 28, 2021, the trial court adjudicated
C.E.L. Sr. to be the parent of S.O.L. On July 29, 2021, the trial court consolidated
the two cases under Trial Cause Number C200227-D, styled In the Interest of C.E.L.
Jr. and S.O.L. Foster sought mandamus relief in this Court. Since the trial court case
was approaching the mandatory dismissal date, we denied the petition for a writ of
mandamus without deciding whether the trial court had abused its discretion. See In
re J.S.G., No. 09-21-00252-CV, 2021 WL 4312983 (Tex. App.—Beaumont Sept.
23, 2021, orig. proceeding, mand. denied) (mem. op.).
The parents signed affidavits of voluntary relinquishment as to the two
children. Based on those affidavits, on September 21, 2021, the trial court signed an
order terminating the parental rights of D.M. and C.E.L. Sr. Foster appealed.
Standing
The sole issue before this Court is whether Foster had standing under section
102.005(3) to intervene with a petition for termination and adoption. A Department
caseworker, Addy Harris, testified that the Department placed C.E.L. Jr. with Foster
from June 2020 through March 2021 and placed S.O.L. with Foster from November
2020 until March 2021. Foster filed petitions in intervention on April 26, 2021.
Because it is undisputed that both children resided with Foster for not less than two
months during the three-month period preceding the filing of the petition in
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intervention, unless section 102.005(3) categorically excludes foster parents, Foster
could establish standing to request termination and adoption if they could show they
had actual possession and control of the children.
The Department argues the Legislature did not intend to convey standing to
foster parents in section 102.005(3). “Standing, like other issues implicating a
court’s subject matter jurisdiction, is a question of law that we review de novo.” In
re H.S., 550 S.W.3d 151, 155 (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.’” Id. (quoting Sommers for
Alabama and Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex.
2017)). When we consider issues of statutory construction, “our objective is to
determine and give effect to the Legislature’s intent.” In re D.T., 625 S.W.3d 62, 71
(Tex. 2021) (evaluating section 107.013 of the Family Code). “We ascertain that
intent from the language the Legislature used in the statute.” Id. “If the meaning of
the statutory language is unambiguous, we adopt the interpretation supported by the
plain meaning of the statute.” Id. “We read the statute as a whole, giving meaning to
the language consistent with other provisions in the statute.” Id.The Department argues that foster-family specific amendments to sections
102.003 and 102.004 of the Family Code demonstrate the Legislature’s intent to
exclude foster parents from section 102.005(3). Traditional principles of statutory
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construction require a court to effectuate the Legislature’s intent by giving effect to
every word, clause and sentence. Hogan v. Zoanni, 627 S.W.3d 163, 169 (Tex.
2021).
The Legislature enacted a statute that confers on certain persons general
standing to file an original suit affecting the parent-child relationship (“SAPCR”).
See Tex. Fam. Code Ann. § 102.003. The Legislature first conferred general standing
to file a SAPCR on foster parents in 1997. Act of May 19, 1997, 75th Leg., R.S., ch.
575, § 3, 1997 Tex. Gen. Laws 2012, 2012-13 (codified at Tex. Fam. Code Ann. §
102.003(a)(12)). Subsection 102.003(a)(12) allowed a SAPCR to be filed by a foster
parent of a child placed by the Department in the person’s home for at least 18
months (subsequently shortened to 12 months) ending not more than 90 days
preceding the filing of the petition. In 1999, the Legislature amended the general
standing statute to distinguish foster parents from other persons who have had actual
care, control, and possession of a child. Act of May 30, 1999, 76th Leg., R.S., Ch.
1390, § 2, 1999 Tex. Gen. Laws 4696, 4696-97 (codified at Tex. Fam. Code Ann.
102.003(a)(9), (12)). The Waco Court of Appeals interpreted subsections (9) and
(12) to require a person to use time exclusive of time as a foster parent to establish
the “actual care, control, and possession of the child” for six months under
subsection (9). In re Torres, 614 S.W.3d 798, 803 (Tex. App.—Waco 2020, orig.
proceeding). That construction gave effect to both subsections of 102.003(a), one
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that expressly conferred general standing to file a SAPCR on foster parents and one
that expressly excluded them. Id.In 2003, the Legislature amended the general standing statute codified at
section 102.003 of the Family Code to add subsection (c), which provides:
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 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.
Act of May 22, 2003, 78th Leg., R.S., Ch. 573, § 1, 2003 Tex. Gen. Laws 1943(codified at Tex. Fam. Code Ann. § 102.003(c)). Thus, a foster parent may file a suit
to adopt their foster child any time after being approved to adopt a child who is
eligible for adoption. See id. It should be noted that section (c) is not a specific
standing section within the general standing to file suit under 102.003, but an
exception to subsection (12). However, section (c) was not applicable to Foster when
they filed their petitions for intervention, because at that time Foster had not been
approved to adopt either child nor was either child eligible to be adopted.
A separate section in Chapter 102 allows specific standing for certain persons
to file a suit for managing conservatorship and allows a trial court to grant leave to
intervene to seek possessory or managing conservatorship in a pending SAPCR. See
Tex. Fam. Code Ann. § 102.004. In 2017, the Legislature amended section 102.004
to limit the trial court’s power to allow an intervention by a foster parent only if the
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foster parent meets the standing requirement to file an original suit under section
102.003(a)(12). See Act of May 19, 2017, 85th Leg., R.S., ch. 341, § 1, 2017 Tex.
Sess. Law Serv. 986 (codified in Tex. Fam. Code Ann. § 102.004(b), (b-1)).
In addition to the statute addressing general standing to file a SAPCR, in the
1995 recodification of the Texas Family Code, section 102.005 conferred on certain
persons specific standing to petition specifically for adoption or for termination and
adoption. See Act of April 6, 1995, 74th Leg., R.S., Ch. 20, § 1, 1995 Tex. Gen.
Laws 113, 125 (codified at Tex. Fam. Code Ann. § 102.005). The Legislature
amended section 102.005 in 2007 to add standing for “an adult who has adopted, or
is the foster parent of and has petitioned to adopt, a sibling of the child[.]” See Act
of May 28, 2007, 80th Leg., R.S., Ch. 1406, § 3, 2007 Tex. Gen. Laws 4814, 4815.
The persons granted standing to petition for termination and adoption in the current
version of section 102.005 include:
(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 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.
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See Tex. Fam. Code. Ann. § 102.005. The Legislature addressed adoption
placements and foster parents in some subsections of section 102.005, but 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.
In 2009, the Amarillo Court of Appeals held that foster parents could file a
petition for termination and adoption under section 102.005(3) and that the foster
parents did not lack the requisite control of the child by virtue of their status as a
non-adoptive contract placement. In re J.H.M., No. 07-07-0109-CV, 2009 WL
5174364, at * 4 (Tex. App.—Amarillo Dec. 29, 2009, no pet.) (mem. op.). Since that
case was decided, the Legislature has amended section 102.005 to allow a foster
parent of one child to petition to adopt the foster child’s sibling but has not chosen
to exclude foster parents from the standing provision of section 102.005(3).
Since a person’s standing to intervene is generally commensurate with that
person’s right to file an original lawsuit, a party who has standing to file an original
suit under section 102.005 may also file an intervention under that same statute. In
re Y.J., No. 02-19-00235-CV, 2019 WL 6904728, at *5-6 (Tex. App.—Fort Worth
Dec. 19, 2019, pet. denied) (mem. op.). Section 102.005(3) allows a person to seek
termination and adoption if the person is an adult who has had actual possession and
control of the child for not less than two months during the three-month period
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preceding the filing of the petition. Tex. Fam. Code Ann. § 102.005(3). A person’s
actual possession and control of a child refers to sharing a principal residence with
the child, providing for the child’s daily physical and psychological needs, and
exercising guidance, governance, and direction similar to that typically exercised on
a day-to-day basis by parents with their children. H.S., 550 S.W.3d at 160
(interpreting “actual care, control, and possession” in section 102.003(a)(9)).
We sustain the sole issue presented in this appeal. Since the appellants
established standing to petition to adopt C.E.L. Jr. and S.O.L., we hold that the trial
court erred by granting the Department’s motion to strike and by dismissing the
petitions in intervention filed by J.S.G. and A.G. We affirm that part of the trial
court’s judgment that terminated the parental rights of D.M. and C.E.L. Sr. to C.E.L.
Jr. and S.O.L. We reverse the trial court’s judgment and remand the case for a new
trial on the petitions for adoption.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on December 27, 2021
Opinion Delivered March 3, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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