in the Interest of N.A.D., a Child

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00131-CV
IN THE INTEREST OF N.A.D., a Child
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 10-11-0822-CVA
Honorable Thomas F. Lee, Judge Presiding 1
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: February 13, 2013
AFFIRMED
This is an appeal from the trial court’s order dismissing a petition filed by Andres 2 and
Terry (hereinafter collectively, the “appellants”) in which appellants sought to modify the
managing conservatorship of their grandchild, N.A.D. We affirm.
BACKGROUND
N.A.D. was born to Marissa and Nicholas on August 26, 2009. On November 4, 2010,
the Texas Department of Family and Protective Services (“the Department”) filed a petition
seeking termination of Marissa’s and Nicholas’s parental rights. The parents later signed
affidavits of relinquishment and, on September 22, 2011, the trial court orally rendered judgment
1
Sitting by assignment.
2
For the protection of the identity of the minor child, all adults will be referred to as either appellant(s) or by their
first name only. See TEX. R. APP. P. 9.8(b).
04-12-00131-CV
terminating their parental rights and naming the Department as managing conservator of N.A.D. 3
Also on September 22, appellants, who were not parties to the termination proceedings, filed a
petition seeking to modify the trial court’s oral rendition of conservatorship to the Department
and asking that they be appointed managing conservator and as “the person who has the right to
designate the primary residency of the child as managing conservatorship and all rights and
duties normally afforded a parent of the child.” The Department moved to dismiss the petition
on the procedural ground that appellants had not attached the affidavit required by Texas Family
Code section 156.102(a). The trial court granted the motion to dismiss without prejudice. This
appeal ensued.
DISCUSSION
Family Code section 156.102(a) provides as follows: “If a suit seeking to modify the
designation of the person having the exclusive right to designate the primary residence of a child
is filed not later than one year after the earlier of the date of the rendition of the order . . ., the
person filing the suit shall execute and attach an affidavit as provided by Subsection (b).” TEX.
FAM. CODE ANN. § 156.102(a) (West Supp. 2012). The affidavit must contain, along with
supporting facts, at least one of the following allegations:
(1) that the child’s present environment may endanger the child’s physical health
or significantly impair the child’s emotional development;
(2) that the person who has the exclusive right to designate the primary residence
of the child is the person seeking or consenting to the modification and the
modification is in the best interest of the child; or
(3) that the person who has the exclusive right to designate the primary residence
of the child has voluntarily relinquished the primary care and possession of the
child for at least six months and the modification is in the best interest of the
child.
Id. § 156.102(b).
3
The termination order was signed on October 11, 2011.
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There is no dispute that appellants did not file an affidavit. Appellants contend that
because they have standing under Family Code section 102.006(c), no other requirements,
including the filing of an affidavit, need be satisfied. Section 102.006, entitled “Limitations on
Standing,” limits the standing of particular individuals when the parent-child relationship has
been terminated; it does not confer standing. See id. § 102.006(a) (“Except as provided by
Subsections (b) and (c), if the parent-child relationship between the child and every living parent
of the child has been terminated, an original suit may not be filed by . . . .”); see also In re A.M.,
312 S.W.3d 76, 81 (Tex. App.—San Antonio 2010, pet. denied) (explaining that section 102.005
details standing requirements for person filing petition for adoption and that section 102.006
“limits the standing of particular individuals in cases where an original suit is filed and the
parents’ rights were previously terminated”). An exception to the subsection (a) limitations on
standing is contained in subsection (c) of section 102.006. This exception applies narrowly in
those circumstances where the parent-child relationship is terminated in a suit filed by the
Department. TEX. FAM. CODE § 102.006(c). Under subsection (c) the limitations on filing suit
“do not apply to . . . a grandparent of the child . . . if the . . . grandparent . . . files . . . a suit for
modification requesting managing conservatorship of the child not later than the 90th day after
the date the parent-child relationship between the child and the parent is terminated in a suit filed
by the Department of Family and Protective Services requesting the termination of the parent-
child relationship.” Id. § 102.006(c). Thus, when the Department seeks and obtains termination
of the parent-child relationship, subsection (c) allows grandparents with standing to file their suit
for modification within ninety days.
However, the question of whether appellants have standing to bring their petition is
separate from the question of whether they must comply with the procedural requirement of
filing an affidavit in compliance with section 156.102. See In re B.G.D., 351 S.W.3d 131, 140
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(Tex. App.—Fort Worth 2011, no pet.) (holding that although a successful access suit might
require grandparent to satisfy section 153.433, whether grandparent ultimately will succeed is a
different question than whether grandparent has the right simply to bring suit); see also In re
C.M.C., 192 S.W.3d 866, 869–70 (Tex. App.—Texarkana 2006, no pet.) (holding decision
concerning whether a party has standing is not a decision deciding the merits of a case); In re
SSJ–J, 153 S.W.3d 132, 138 (Tex. App.—San Antonio 2004, no pet.) (“[S]tanding does not
mean the right to win; it is only a right to be heard.”). Thus, even if appellants have standing, the
question remains whether they are excused from filing an affidavit in accordance with section
156.102.
Appellants assert they were not required to file an affidavit because they are not N.A.D.’s
parents, they were not parties to the termination suit, and the provisions of section 156.102 apply
only to divorcing parents and not to children in the Department’s care. Appellants rely on three
cases for their argument that the Legislature’s intent in enacting section 156.102 “was to assure
stability to the provision for custody of divorced parents and to prevent the custody award from
being relitigated within a short period of time, except in cases involving the children’s physical
health and emotional development.” Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.—Fort
Worth 1985, writ dism’d) (emphasis added); see also Burkhart v. Burkhart, 960 S.W.2d 321, 323
(Tex. App.—Houston [1st Dist.] 1997, pet. denied) (“The philosophical underpinning of section
156.102 is clear: the Legislature intended to promote stability in the conservatorship of children
of divorced parents.”); In re C.S., 264 S.W.3d 864, 873 (Tex. App.—Waco 2008, no pet.) (citing
to Burkhart).
However, Mobley and Burkhart involved divorcing parents seeking a modification; thus,
we must read their specific holdings in that factual context. We do not agree these cases hold
that section 156.102 applies only to divorced parents or only to parties to the suit. Instead, we
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believe these cases stand for the more general proposition that the Legislature’s intent in enacting
section 156.102 was to discourage relitigation of custodial issues within a short period of time
after the custody order “through the imposition of a heightened standard of verified pleading.”
Burkhart, 960 S.W.2d at 323. “Public policy disfavors disruption of custodial arrangements
within the first year, except in cases in which the child’s physical health or emotional
development is imperiled.” Id. To that end, section 156.102 requires that “the person filing the
suit shall execute and attach an affidavit,” see TEX. FAM. CODE § 156.102(a), and that “an initial
determination be made by the court as to whether the facts sworn to in the affidavit supporting
the motion to modify justify a hearing.” Mobley, 684 S.W.2d at 229. We believe the Legislature
did not intend to limit section 156.102’s applicability solely to divorced parents or persons who
were parties to an underlying termination suit. And, we decline to read into section 156.102 an
exception the Legislature did not express. See Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011)
(interpreting Family Code section 154.066).
Appellants next argue that section 156.102 does not include the Department within the
scope of the word “person.” Appellants point to the language of section 156.102(a), which
provides that in a suit seeking to modify the designation “of the person having the exclusive right
to designate the primary residence of a child,” for their argument that section 156.102 does not
apply to them because the Department is not a “person.” TEX. FAM. CODE § 156.102(a)
(emphasis added).
Although the Legislature has defined “person” in other Codes, nowhere in the Family
Code has the Legislature defined “person,” much less defined this word to include the
Department. 4 However, the cardinal rule of statutory construction is to ascertain and give effect
4
Section 156.102 also does not define “Department”; however, another section defines “Department” as “the
Department of Family and Protective Services.” TEX. FAM. CODE ANN. § 263.001(a)(1) (West Supp. 2012). In
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to the Legislature’s intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). When
determining that intent, the Texas Code Construction Act guides our analysis. Klein v.
Hernandez, 315 S.W.3d 1, 6 (Tex. 2010). The Act provides that “unless the statute or context in
which the word or phrase is used requires a different definition” the following definition of
“person” applies to include a “corporation, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership, association, and any other legal
entity.” TEX. GOV’T CODE ANN. § 311.005(2) (West 2005) (emphasis added). We do not
believe the Family Code requires a different definition; therefore, we conclude section 156.102’s
use of the word “person” includes the Department.
CONCLUSION
Based on the above, we are constrained to conclude that the procedural requirement of
section 156.102 applies to those persons, including appellants, who file suit to modify the
Department’s conservatorship of a child. Accordingly, we hold the trial court did not err in
dismissing appellants’ petition to modify the parent-child relationship without prejudice;
therefore, we affirm the order of dismissal.
Sandee Bryan Marion, Justice
other Codes, the Legislature has defined “person” to include various entities. See, e.g., TEX. CIV. PRAC. & REM.
CODE ANN. § 37.001 (West 2008) (defining “person” to include “an individual, partnership, joint-stock company,
unincorporated association or society, or municipal or other corporation of any character”); TEX. GOV’T CODE ANN.
§ 311.005(2) (West 2005) (defining “person” to include a “corporation, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity”); TEX. PROB.
CODE ANN. § 601(21) (West 2003) (defining “person” to include “natural persons, corporations, and guardianship
programs”).
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