Theresa Seale and Leonard Seale v. Department of Family and Protective Services, D.B., and R.B.

Opinion issued March 3, 2011

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-10-00440-CV

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Theresa Seale and Leonard Seale , Appellant

V.

Texas

Department of Family and Protective Services, Robert Brown, and Donna Brown , Appellee

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Case No. 2008-60603

MEMORANDUM

OPINION

Theresa and

Leonard Seale appeal the trial court’s designation of Robert and Donna Brown as

joint managing conservators of the minor child M.M. Both the Browns and the Seales petitioned to

intervene as parties to a suit brought by the Department of Family and

Protective Services (DFPS) to terminate parental rights and designate a

conservator for the child. The Seales

argue on appeal that the trial court erred in denying DFPS’s motion to strike

the Browns’ petition because the Browns lacked standing to intervene under the

Family Code. The Seales also argue the

trial court erred in denying their own petition because they had standing and

none of the parties filed a motion to strike their intervention. Finally, the Seales challenge the Browns’

appointment as M.M.’s joint managing conservators.

We reverse and remand for a new

trial on the merits.

Background

DFPS

took custody of M.M. at her birth in October 2008 when she tested positive for

marijuana and her mother tested positive for marijuana and Valium. DFPS initiated a suit affecting the parent

child relationship (“SAPCR”) within days of M.M.’s birth and filed a petition

for the protection of the child, conservatorship, and the termination of

parental rights. DFPS placed M.M. with

the Seales who the agency believed to be M.M.’s paternal grandparents. A paternity test later showed that the Seales

had no blood relationship to M.M. The

Seales continued to raise M.M., even after the discovery, with Theresa Seale

staying home to care for her and Leonard Seale supporting the family.

M.M.’s

maternal great-aunt, Donna Brown, discovered in July 2009 that the child was

being raised by people who had no blood relationship to M.M. She attempted to contact DFPS regarding M.M.,

but did not receive a response from the agency until December 2009. DFPS told Donna that the agency would conduct

a home study, but it did not initiate a home study until shortly before

trial.

In February 2010, the Browns filed

a petition to intervene in the DFPS suit and asked to be designated as M.M.’s

joint managing conservators. A month

later, they filed a motion asking the trial court for leave to file their

petition to intervene. [1] DFPS filed a motion to strike the Browns’

petition. After a hearing on March 30,

2010, the trial court denied DFPS’s motion to strike and allowed the Browns to

intervene as parties to the suit one month before trial.

The Seales filed their own petition

to intervene on April 13, 2010, within two weeks of the hearing on DFPS’s

motion to strike the Browns’ intervention.

Trial began two weeks later at which time the Browns alleged that the

Seales only served them on the day of trial and had failed to file a motion for

leave to file their petition. The Seales

explained that they had not intervened earlier because they did not consider

themselves to be adversaries to any parties to the proceeding until the trial

court allowed the Browns to intervene. The

trial court ruled, “I’m going to deny your request for intervention as no

motion for leave has been made,” but would allow the Seales to testify if

called. The Browns then invoked the Rule

and excluded all witnesses from the courtroom, including the Seales. See Tex. R. Evid . 614.

At trial, the court terminated all

parental rights to M.M. after her mother signed a voluntary relinquishment of

her rights. [2] The trial court then heard testimony as to

conservatorship. DFPS argued that M.M.

should remain with the Seales. One of

M.M.’s case workers testified that M.M. had been with the Seales for her entire

life—18 months at the time of trial—and that the child had bonded with her

foster parents. She testified that

M.M.’s only contacts with the Browns were two visits in the month before trial

at the DFPS office.

Theresa Seale testified to M.M.’s

daily routine, her family’s financial and living situation, and that she had

two grown sons with drug problems — one of whom lived with M.M.’s mother at the time. Leonard Seale testified that he had not

smoked marijuana in the last two to three years, but that in the past he had

smoked marijuana with his stepson who everyone believed to be M.M.’s

father. He testified that he had never

smoked marijuana with M.M.’s mother and that she had not lived on his property

after she became pregnant with M.M.

M.M.’s mother testified that she had lived on the Seale’s property for

several months and had smoked marijuana before, during, and after her pregnancy

with Leonard Seale and his stepson. She

stated that she preferred that DFPS place M.M. with the Browns.

Donna Brown testified as to her

family’s financial and living situation and that she wanted conservatorship of

M.M. because of her family connection.

She stated they were in the final stages of adopting a three year-old

girl who was the child of a distant cousin and had lived with them since

infancy. She also testified that her 26

year-old physically disabled son lived with them as well and that he was doing

well despite past instances of depression and suicidal thoughts as a

teenager. Robert Brown testified that he

had a robbery and a DWI conviction and had used marijuana and cocaine, but that

none of these behaviors continued past the early 1980s.

The trial court appointed the

Browns as joint managing conservators with DFPS. The Seales timely filed a notice of appellate

points under Texas Family Code section 263.405(b) and a motion for new trial

challenging the denial of DFPS motion to strike the Browns’ petition to intervene,

the trial court’s denial of their own petition, and the trial court’s

appointment of the Browns as conservators even though they lacked standing to

participate. The trial court denied the

motion for new trial and the Seales appealed.

Petition to Intervene in SAPCR

Proceedings

The Seales contend that the trial court erred in denying

DFPS’s motion to strike the Browns’ petition to intervene and in dismissing

their petition to intervene. All parties

agreed that Texas Rule of Civil Procedure Rule 60 governs the intervention

procedure in this case. Rule 60 permits

any party to intervene in an action “subject to being stricken out by the court

for sufficient cause on the motion of any party.” Tex.

R. Civ. P. 60; see McCord v. Watts ,

777 S.W.2d 809 , 811–12 (Tex. App.—Austin 1989, no pet.) (applying Rule 60 to

petitions to intervene in SAPCR proceeding).

The rule authorizes a party with a justiciable interest in a pending

suit to intervene as a matter of right. In

re Union Carbide Corp. , 273

S.W.3d 152, 154 (Tex. 2008).

Ordinarily, to have a justiciable interest the intervenor

must show standing to have brought the original suit, or that he would be able

to defeat recovery, or some part thereof, if the action had been brought

against him. Whitworth v. Whitworth , 222 S.W.3d 616, 621 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). “However, an intervenor in a suit affecting the

parent-child relationship does not need to plead or prove the standing required

to institute an original suit because managing conservatorship is already in

issue.” Id. Section 102.004(b) of

the Family Code provides that the trial court may grant a grandparent or “other

person 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 subchapter,” if the court has proof that appointing either parent as

a managing conservator would impair the child’s health and emotional

development. Tex. Fam. Code Ann. § 102.004(b) (West 2008).

Under Rule 60 of the Texas Rules of

Civil Procedure, an intervenor is not required to secure the trial court’s

permission to intervene; the party who opposed the intervention has the burden

to challenge it by a motion to strike.

See Guaranty Fed. Sav. Bank v. Horseshoe Operating Co. , 793 S.W.2d 652, 657 (Tex. 1990); see

also Harris Cnty. v. Luna-Prudencio ,

294 S.W.3d 690, 699 (Tex. App.—Houston [1st Dist.] 2009, no pet.) . We examine the trial court’s ruling on a

motion to strike for abuse of discretion.

Guaranty Fed. Sav. Bank ,

793 S.W.2d at 657 ; In re N.L.G. , 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.). In reviewing matters committed to a trial

court’s discretion, we are not to substitute our own judgment for that of the

trial court but to determine whether the trial court acted in an arbitrary or

unreasonable manner without reference to any guiding rules or principles. See Walker v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003).

I.

Motion to Strike the Seales’

Petition

The Seales

contend that no party raised a motion to strike their petition and therefore

the trial court abused its discretion by striking the petition sua sponte . Guaranty

Fed. Sav. Bank , 793 S.W.2d at 657 (holding trial court cannot strike a

petition to intervene without a party’s motion to strike). The Browns objected on the first day of trial

that the Seale’s petition for intervention had not been filed until two weeks

before trial, that they had only received service on the day of trial, and that

the Seales had not filed a motion for leave to file their petition. The Seales responded that they had filed the

petition within two weeks of the trial court’s order allowing the Browns to intervene,

before which they believed they were the only family seeking conservatorship of

M.M.

We must

determine whether the Browns’ objection constituted a motion to strike. An intervenor does not need the trial court’s

permission to intervene, therefore, the burden rests on the objecting party to

raise a motion to strike to challenge a petition to intervene. Guaranty Fed. Sav. Bank , 793 S.W.2d at 657 . The Browns

did not use the words “motion to strike,” but their objection challenged the

Seales’ right to intervene as a full party to the suit and sought the same

relief as a motion to strike — namely that

the trial court prevent the Seales from intervening. The name of the motion does not matter as

long as the relief sought and effect are made clear to the trial court. See C/S

Solutions, Inc. v. Energy Maint. Servs. Group, L.L.C. , 274 S.W.3d 299, 307

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (stating trial court should

consider substance of plea for relief, not merely title given). The Browns therefore effectively raised a

motion to strike the Seales’ petition to intervene.

II. Abuse of Discretion

We examine the trial court’s ruling on a motion to strike

for abuse of discretion. In re N.L.G. , 238 S.W.3d at 829 . The trial court ruled on

the Seales’ petition by stating, “I’m going to deny your request for

intervention as no motion for leave has been made.” The intervenor does not need the trial

court’s permission to intervene. Harris Cnty. , 294 S.W.3d at 699 . Even though the trial court gave an incorrect

basis for its ruling, however, we consider whether a legitimate basis

exists. Drilex Sys., Inc. v. Flores ,

1 S.W.3d 112, 119 (Tex. 1999).

With a petition to intervene, a

trial court abuses its discretion if it strikes a petition in which (1) the intervenor could bring

the same action, or any part thereof, in their own names, (2) the intervention

will not complicate the case by an excessive multiplication of the issues, and

(3) the intervention is almost essential to effectively protect the intervenors’

interest. See Harris Cnty. , 294 S.W.3d at 699 (citing Guaranty Fed.

Sav. Bank , 793 S.W.2d at 657 ).

First, the Seales satisfied the first prong because they had

standing to intervene in DFPS suit based on their substantial past contact with

M.M—they had raised her for the entirety of her 18 month life—and the

undisputed allegation in DFPS’s and their own petitions that placement with

M.M.’s mother would significantly impair the child’s health and emotional

wellbeing. See Tex. Fam. Code Ann.

§ 102.004(b). [3]

Second, the inclusion of the Seales would not have further

complicated the case. The Seales did not

bring any new issues or claims to the trial because M.M.’s conservatorship was

already before the court and DFPS was advocating for the Seales to be granted

custody of M.M. The Seales testified at

trial regardless of their status as full parties to the case. While allowing their attorney to call and

cross-examine witnesses would have added another attorney to the proceeding,

and thus lengthened the trial to some degree, seven attorneys were already

participating. The addition of a single

attorney when so many were already participating is not sufficient to outweigh

the Seales’ justiciable interest.

The Seales’ petition also did not complicate the case

because, under these unusual and narrow facts, the timing of their petition to

intervene would not have adversely affected the trial or the other parties to

the case. The Browns—who lacked standing

to intervene under the Family Code [4] —first

participated in the case less than one month before trial when the court denied

DFPS’s motion to strike the Browns’ petition to intervene. The Seales, who had standing to intervene,

filed their petition only two weeks later.

The Seale’s involvement and interest in the suit could hardly have been

surprising to either the trial court or the parties. The Seales had possession of M.M., had raised

her for her entire life, and DFPS petitioned for and argued that M.M. remain in

their care. The Seales, without counsel,

had attended all the hearings in the case.

They had had no reason to intervene before the Browns became parties

when the matter was uncontested. The

Browns’ intervention changed the dynamics of the case, so it should not have

surprised anyone that the Seales would now want to participate in protecting

their conservator status.

The only substantive reason offered by the Browns for

striking the Seales’ petition was that they were not served until the day of

trial. The Seales did not refute or

offer any excuse for their failure. But

that failure did not prejudice the Browns under these narrow circumstances

given the Seales’ clear interest in the suit and the proximity of the two

interventions.

Third, the inclusion of the Seales as parties was essential

to the protection of their interest. The

Seales were unable to call their own witnesses or cross-examine the witnesses

brought at trial. By preventing the

Seales from presenting any evidence at trial, other than their own testimony,

the trial court eviscerated their ability to present their position

effectively. See Taylor v. Taylor , 254 S.W.3d 527, 535 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (holding trial court abused its discretion by forbidding

party from calling or cross-examining witnesses as sanction for not producing

witness and exhibit list before trial).

The Browns also invoked the Rule excluding witnesses from the courtroom

immediately after the trial court dismissed the petition to intervene. The Seales, therefore, were not allowed to be

present during trial and their attorney was prohibited from informing them of

the substance of the trial testimony. Tex. R. Civ. P. 267(d)

(“Witnesses . . . shall be instructed by the court that they are not

to converse with each other or with any other person about the case other than

the attorneys in the case ” (emphasis

added)); Bishop v. Wollyung , 705

S.W.2d 312, 314 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (holding trial

court may not exclude party in interest, whether named party or not). Indeed, the court ordered them and the other

witnesses “not to discuss anything” about the case until the trial was concluded. That limitation on their ability to

communicate interfered with their ability to protect their interest.

Given the Seales’ standing, the Browns’ lack of standing,

the lack of surprise or inconvenience to the parties or trial court, and the

harm to the Seales’ interest, we hold the trial court abused its discretion by

granting the Browns’ motion to strike the Seales’ petition to intervene.

III. Harmful Error

We may not reverse the judgment of the trial court unless we

conclude the error probably caused the rendition of an improper judgment or

probably prevented the petitioner from properly presenting the case to the

appellate courts. See Tex. R. App. P. 44.1(a);

Quick v. City of Austin , 7 S.W.3d

109, 126 (Tex. 1998). The Browns contend

that any error by the trial court in striking the Seales’ intervention or

allowing their own is harmless because the trial court may award

conservatorship to any suitable, competent adult. They assert the trial court heard sufficient

evidence regarding the suitability of both the Browns and Seales to justify its

decision.

The trial court may designate a suitable, competent adult as

conservator regardless of whether the adult intervened as a party to the

suit. See Tex. Fam. Code Ann. §§

153.002, 161.207 (West 2008). Here,

ironically, the trial court allowed the Browns to intervene without standing

under the Family Code and excluded the Seales who had standing and a

justiciable interest. The Browns’

attorney played a major role at the trial eliciting some of the most

substantial direct and cross-examination testimony of any party except

DFPS. The Browns also remained in the

courtroom and heard all the evidence presented to the trial court while the

Seales waited in the hall to be called as witnesses. The Seales were, therefore, unable to call

their own witnesses, cross-examine and refute the evidence against them,

present attorney argument at the open and close, or make any objections to

preserve error on appeal. Their lack of

participation prevented the Seales from properly preserving, advocating, and

presenting their case on appeal.

Admittedly, DFPS’s interests aligned with the Seales’ desire to be named

M.M.’s conservator, at least at the start of the hearing. The Seales were forced to rely, however, on

another party to the proceeding rather than use their own counsel to advocate

their interest. DFPS switched its

position on appeal so that they now support placement with the Browns and

counsel for DFPS indicated that DFPS changed its position during the hearing

based on the testimony of M.M.’s mother that she had smoked marijuana with

Leonard Seale while pregnant with M.M.

We hold that the trial court’s error in excluding the Seales was harmful

because it prevented them from participating as a full party to the suit

despite their clear justiciable interest.

We sustain the Seales’ second issue.

Conclusion

We hold the trial court abused its discretion in dismissing

the Seales’ petition to intervene and that such error was harmful. We reverse the judgment of the trial court

and remand the case for a new trial on the merits.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

[1]

As discussed below, a motion for

leave to intervene is not required by Texas Rule of Civil Procedure 60.

[2]

The trial court also terminated

parental rights as to any unknown father of M.M.

[3]

Although

the Seales’ petition did not allege facts to establish their substantial contact

with M.M., they told the trial court after the Browns’ objection, “They have

been the foster parents since this child came home from the hospital.” Also, no party contested the Seales’ standing

to intervene either at the trial court or to this court.

[4]

At oral argument, DFPS conceded,

and the Browns’ counsel did not disagree, that the Browns did not have standing

to intervene at the time they filed their petition if they were not within the

third degree of consanguinity. Sections

102.003 and 102.004 of the Family Code list who is entitled to bring an

original suit and who has standing to intervene. See Tex. Fam. Code Ann. § 102.003, 102.004

(West 2008). Persons within the third

degree of consanguinity may be entitled to bring an original suit — and thereby intervene — if certain other

conditions are met, but the Browns do not fall within the definition of third

degree consanguinity given in section 102.003.

Admittedly, the Browns may now be able

to satisfy standing to intervene requirements in section 102.004(b) at a new

trial given their substantial contact with M.M. since the trial court’s

judgment named them joint managing conservators.