in the Interest of P.M.S., a Child

                                                NO. 12-05-00280-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§                      APPEAL FROM THE THIRD

IN THE INTEREST

§                      JUDICIAL DISTRICT COURT OF

OF P. M. S., A CHILD

§                      HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Melvin Wayne Sellers appeals the trial court’s order granting Appellee Shannon Joyce Keating’s motion for summary judgment. In two issues, Melvin contends that the trial court erred in granting the motion because there were genuine issues of material fact regarding his standing to bring suit and because Shannon failed to plead affirmative defenses in her answer.  We affirm.

Background

            Melvin is the biological father of P.M.S., born June 23, 1997.  Shannon is P.M.S.’s biological mother.  Melvin and Shannon were never married.  On February 20, 2004, the trial court declared that Melvin was P.M.S.’s father, but found, by clear and convincing evidence, that Melvin voluntarily executed an affidavit  of relinquishment of his parental rights and that termination of the parent-child relationship between Melvin and P.M.S. was in the best interest of the child.  The trial court ordered that the parent-child relationship between Melvin and P.M.S. be terminated.  In the same order, the trial court appointed Shannon as managing conservator of P.M.S.  On June 21, 2005, Melvin filed an original petition in a suit affecting the parent-child relationship, stating that he was P.M.S.’s “parent” pursuant to Section 102.003 of the Texas Family Code.  Further, Melvin stated that he had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition pursuant to Section 102.003(a)(9) of the Texas Family Code.  In the petition, Melvin asked that he be appointed sole managing conservator of P.M.S. with the exclusive right to designate the primary residence of the child. Shannon filed a general denial.

            On July 18, 2005, Shannon filed a motion for summary judgment contending that Melvin’s parental rights were terminated, that he has not subsequently adopted P.M.S., and that he has not been named joint, managing, or possessory conservator of the child.  Shannon alleged that Melvin did not have the legal capacity to file suit because he did not qualify as a person who had standing pursuant to Section 102.003 of the Texas Family Code.  Because Melvin did not have standing to file suit, Shannon stated that there were no genuine issues of material fact.  Melvin responded that Shannon did not plead standing as an affirmative defense in her answer.  He also specially excepted and objected to the trial court’s consideration of any of Shannon’s responsive or affirmative pleadings.  Further, Melvin contended that his affidavit and exhibits attached to his response constituted proof of his standing to file suit pursuant to Section 102.003 of the Texas Family Code and were sufficient to create an issue of material fact.

            On August 22, 2005, the trial court granted Shannon’s motion for summary judgment, stating in its order that there was no genuine issue of material fact regarding standing and that Shannon was entitled to summary judgment as a matter of law because Melvin lacked standing to file suit. This appeal followed.

Failure to Plead Standing

            In his second issue, Melvin contends that the trial court erred in granting Shannon’s motion for summary judgment because she did not plead affirmative defenses in her answer.  He argues that affirmative defenses raised in a motion for summary judgment must be affirmatively pleaded and, if not, the pleadings cannot support a summary judgment based on the unpleaded affirmative defenses.  Shannon contends that lack of standing may be raised at any time, including on appeal. We agree.

            Subject matter jurisdiction is an issue that may be raised for the first time on appeal by the parties or the court.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). As a component of subject matter jurisdiction, standing cannot be waived in any case.  Id.  In Shannon’s motion for summary judgment, she alleged that, as a matter of law, Melvin did not have standing to file suit.  Because the issue of standing cannot be waived and may be raised for the first time on appeal, the trial court did not err in considering Shannon’s motion for summary judgment based on Melvin’s lack of standing to file suit. Accordingly, Melvin’s second issue is overruled.

Summary Judgment

            In his first issue, Melvin argues that the trial court erred in granting summary judgment on the issue of standing because there were fact issues that precluded summary judgment.

Standard of Review

            We review the trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  The standards for reviewing a motion for summary judgment are that (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  If a motion involves the credibility of affiants or deponents, or the weight of the showings, or a mere ground of inference, the motion should not be granted. Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952).

Standing

            A plaintiff must have standing to bring a lawsuit.  Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Standing is a prerequisite to subject matter jurisdiction, and subject matter jurisdiction is essential to a court’s power to decide a case.   M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001).  The general test for standing in Texas requires that there “(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.”  Tex. Ass’n of Bus., 852 S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722, 724 (1955)).  The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a “justiciable interest” in its outcome.  Austin Nursing Ctr., Inc., 171 S.W.3d at 848. Further, it focuses on the question of who may bring an action.  M.D. Anderson Cancer Ctr., 52 S.W.3d at 708.  According to the Texas Family Code, an original suit affecting the parent-child relationship may be filed at any time by a parent of the child or 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 ninety days preceding the date of the filing of the petition.  Tex. Fam. Code Ann. § 102.003(a)(1), (9) (Vernon Supp. 2005). 

            A court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has executed, before or after the suit is filed, an unrevoked or irrevocable affidavit of relinquishment of parental rights and that termination is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001(1)(K), (2) (Vernon 2002).  An order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides.  Tex. Fam. Code Ann. § 161.206(b) (Vernon Supp. 2005).  A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.  Tex. Fam. Code Ann. § 161.211(c) (Vernon 2002).  Even if a trial court provides limited posttermination contact with the child in an order terminating the parent-child relationship, that posttermination order does not grant standing to a parent whose parental rights have been terminated to file any action under Title 5 other than a motion to enforce the terms regarding limited posttermination contact until the court renders a subsequent adoption order with respect to the child.¹ Tex. Fam. Code Ann. § 161.2061(f)(2) (Vernon Supp. 2005).

Analysis

            In his original petition, Melvin stated, as a basis for filing suit, that he is P.M.S.’s parent.  It is undisputed, however, that Melvin’s parental rights were terminated by court order.  According to the Texas Family Code, a “parent” does not include a parent as to whom the parent-child relationship has been terminated.  Tex. Fam. Code Ann. § 101.024 (Vernon 2002).  Because his parental rights were terminated, Melvin is not P.M.S.’s parent and has no standing to file suit based on such claim.

            Melvin also stated, as a basis of his standing to file suit, that he has had actual care, control, and possession of P.M.S. for at least six months ending not more than ninety days preceding the date of filing his original petition pursuant to Section 102.003(a)(9) of the Texas Family Code. Melvin’s affidavit attached to his response to Shannon’s motion for summary judgment also supports his petition. However, a termination decree is not subject to modification and binds the parent and trial court unless and until it is set aside in a successful direct or collateral attack.  See In re Lambert, 993 S.W.2d 123, 132 (Tex. App.–San Antonio 1999, no pet.).  In this suit, Melvin has not attempted to set aside the termination order by either a direct or collateral attack and, thus, is bound by the termination order.

            Additionally, Melvin has no legal rights with respect to P.M.S. because his parental rights were terminated and this termination divested him of “all legal rights and duties.”  See Tex. Fam. Code Ann. § 161.206(b).  Moreover, former parents do not have standing to invoke a court’s continuing jurisdiction over managing conservatorship issues or have a right to visitation.  In re Lambert, 993 S.W.2d at 132. Public policy demands that “when a parent voluntarily terminates the parent-child bond, the best interest of the child becomes paramount.”  In re Hughes, 770 S.W.2d 635, 637 (Tex. App.–Houston [1st Dist.] 1989, no writ) (quoting Brown v. McLennan County, 627 S.W.2d 390, 393 (Tex. 1982)).  “Children voluntarily given up in compliance with the Family Code . . . cannot be snapped back at the whim of the parent.”  Id. (quoting Brown, 627 S.W.2d at 393).  Finality in termination orders is important for the security of children and, thus, has a rational basis.  Id. at 638.

            Because Melvin’s parental rights to P.M.S. were terminated, he has no justiciable interest in this suit and, therefore, no standing to invoke the trial court’s jurisdiction to determine conservatorship issues.  Accordingly, Melvin’s first issue is overruled.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    DIANE DEVASTO   

                                                                                                                 Justice

Opinion delivered May 26, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

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¹ Title 5 of the Family Code governs suits affecting the parent-child relationship.