in Re Joseph Andre Davis

ACCEPTED

01-15-00408-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/5/2015 7:01:51 AM

CHRISTOPHER PRINE

CLERK

FIRST COURT OF APPEALS

HOUSTON, TEXAS FILED IN

1st COURT OF APPEALS

RE: Case No. 01-15-00408-CV HOUSTON, TEXAS

8/5/2015 7:01:51 AM

IN RE JOSEPH ANDRE DAVIS CHRISTOPHER A. PRINE

Clerk

APPELLANT

V.

FLOYD D. LOPEZ

APPELLEE

From cause No. 2014-58410

in the 245th District Court of

Harris County, Texas

The Honorable Roy L. Moore

__________________________________________________________

MOTION FOR CLARIFICATION, REHEARING, AND REHEARING EN BANC OF

THE PER CURIAM AFFIRMANCE AND REQUEST FOR A WRITTEN OPINION

AND CERTIFICATION

___________________________________________________________

Appellant, Joseph Andre Davis, pursuant to Rules 47, 48, and 49 of Texas Rules of

Civil Procedures, hereby respectfully move this Court for rehearing, rehearing en

blanc, clarification, certification; written opinion of the Court's July 28, 2015

decision in this matter and request a written opinion, and certification of question

to Texas Supreme Court.

I, Joseph Andre Davis, respectfully request clarification of the Court's order

summarily denying a Writ of Mandamus and Motion to Stay from judgment of the

lower court's decision and their failure to rule on the May 01, 2015 request for a

Writ of Mandamus. I, Joseph Andre Davis, respectfully assert that the Court has

overlooked or misapprehended critical facts and has misapprehended the law. I,

therefore, request a rehearing. I, further, respectfully assert that the case is of

exceptional importance and that this Court's decision to affirm the lower court

conflicts with decisions of the Texas Appellate courts, the Texas Supreme Court

and the U.S. Supreme Court Constitutional and fundamental rights that are

protected by the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution. Therefore, I am requesting a rehearing en banc.

I, Joseph Andre Davis, also respectfully assert that a written opinion would

provide a legitimate, good faith basis for Texas Supreme Court review and request

that this court issue a written opinion regarding its decision to affirm the lower

court.

Finally, Appellant Joseph Andre Davis, requests that this court certify a question

of great public importance to the Texas Supreme Court. My arguments are set

forth below.

I. Motion for Clarification

Because this Court issued only a per curiam affirmance, Appellant Joseph Andre

Davis can only assume that the Court granted summary affirmance under Texas R.

App. P. I request clarification of the Court's position that no preliminary basis for

reversal has been demonstrated.

II. Motion for Rehearing

Because the Court denied Writ of Mandamus Appellant Joseph Andre Davis filed

May 01, 2015, and First Court Of Appeals did not provide a written opinion for its

decision to affirm the lower court, it is difficult to ascertain the extent of the

Court's misapprehending or overlooking of the facts and law. However, it seems

that the court must have misapprehended or overlooked numerous matters

because of its failure to grant a Writ of Mandamus and its failure to issue a

written opinion in so vital a matter. Appellant Joseph Andre Davis raised many

arguments of reversible error involving the lower court's lack of Subject Matter

Jurisdiction, the application of which raises important State and Federal

Constitutional issues that make it no longer equitable to enforce the trial court's

earlier order authorizing standing to the maternal grandparents. The 245th

District Court did not hear oral argument in this matter nor did it address the

merits of any of these issues. Thus, it is apparent that the Court misapprehended

or overlooked important matters of fact and law.

III. Motion for Rehearing En Banc

Under the exceptional importance standard, cases involving important

precedents likely to affect other cases merit rehearing en banc. The Petitioner

Floyd Daniel Lopez who is seeking managing conservatorship has the burden to

prove standing. In re Smith, 262 S.W. 3d 463,465 (Texas App. Beaumont 2008)

In re Richard Scheller, Relator, "A trial court abuses it discretion when a

grandparent does not overcome the presumption that a parent acts in his or her

child's best interest by proving that denial of or access to the child would

significantly impair the child's physical or emotional well-being." Derzapf, 219 S.W.

at 333 (quoting Texas Family Code Sec. 153.433 (a) (2).

The Trial Court erred because it did not indicate any reason why "it should

interfere with the parent-child relationship." In re Mays-Hooper, 189 S.W. 3d at

778 (Texas)

Troxel v.Granville, U.S. 57 (2000). The Court held that a trial court's order for

grandparent access unconstitutionally infringed on the parent's fundamental

liberty interest where there was no evidence that the parent was unfit, the

children's health and well-being would suffer, or that the parent intended to

exclude grandparent access entirely.

Parent's fundamental liberty interests in the care, custody, and control of her

children is of public importance. It also amounts to issues of exceptional

importance within the terms of Constitutions of this State and the United States.

In addition, the error regarding the violations of Due Process Clause of the

Fourteenth Amendment to the U.S. Constitution raised in Appellant, Joseph Andre

Davis' initial brief is of exceptional importance. The U.S. Supreme Court, the

Texas Supreme Court and this Court have all recognized that parental interests

are a fundamental right protected by the Due Process Clause of the 14th

Amendment to the U.S. Constitution". In re Pensom, 126 S.W. 3d 251,254 (Tex.

App. San Antonio 2003, orig. proceeding citing Troxel v. Granville, 530 U.S.

57,65,120 S.Ct 2054,147 L ed 2d 49 (2000). "Texas statutes are intended by the

legislature to be in compliance with the Constitutions of this State and the United

States." In re K.K.C., 292 S.W. 3d at 792 (citing TEX.GOV'T CODE ANN. 311.021 (1)

(Vernon 2005).

"The power of a trial court to adjudicate disputes between a parent and a non-

parent, and to enforce its own orders contrary to a parent's decisions concerning

her children, constitutes state involvement that implicates the parent's

fundamental liberty interests in the care, custody, and control of her children."

See Troxel, 530 U.S. at 65-76, 120 S.Ct. 2054. Appellant Joseph Andre Davis has

raised the lower court's violation of subject matter jurisdiction in an appeal. This

Court's summary affirmance of this alleged error and the precedent established

thereby is an issue of exceptional importance that merit en banc review.

Finally, the precedents set by this Court's decision will also affect this Court's

future rulings on issues of the Texas statutory and U.S. and Texas Constitutional.

The interest of parents in the "care, custody, and control" of their children "is

perhaps the oldest of the fundamental liberty interests" recognized by the U.S.

Supreme Court. (Troxel v.Granville, 530 U.S. 57,645,120 S.Ct. 2054,147 L Ed.2d 49

(2000). Furthermore, this State has long recognized that the "natural right which

exists between parents and their children is one of Constitutional dimensions."

See Wiley v. Spratlan, 543 S.W. 2d 349,352 (Tex. 1976); see also Holick v. Smith,

685 S.W. 2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. San

Antonio 2003, orig. proceeding). In re K.K.C., 292 S.W.3d at 792(footnote

omitted). It, therefore, greatly implicates the important state and federal

constitutional issue of the interest of parents in the "care, custody, and control"

of their children. An issue involving standing is a component of subject matter

jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under

Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 s.w.2d. 440,443-44 (Tex.

1993). The standard of review applicable to subject matter jurisdiction also

applies to standing ld. at 446. Under that standard, Appellee, Floyd Daniel Lopez

is required to allege facts affirmatively demonstrating the trial court's jurisdiction

to hear the case. ld. Under Texas Family Code102.003 (11) a person with whom

the child and the child's guardian, managing conservator, or parent have resided

for at least six months ending not more than 90 days preceding the date of the

filing of the petition if the child's guardian, managing conservator, or parent is

deceased at the time of the filing of the petition is where Appellee, Floyd Daniel

Lopez claims to have standing. Deceased Parent " A stepparent who has resided

with the child can seek standing upon the death of the child's natural parent:

Subsection 102.003 (a) (11) was designed as a "stepparent" statute affording

standing to, among others, a stepparent who helps raise a child when the

stepparent's spouse , one of the child's parents dies. A traditional application

would indicate that upon the death of the mother, as a sole managing

conservator of the child, her current husband would have standing. Note,

however, that the statutory language is not limited merely to stepparents; literally

it can also include an unmarried cohabitant or even an adult sibling of the child of

a deceased parent. Appellee Floyd Daniel Lopez fits in neither category nor his

daughter, Sandra Lopez, J.A.D.'s mother was not sole managing conservator. We

were joint managing conservators, she was the custodial joint managing

conservator.

On review, appellate courts "construe the pleadings in favor of the plaintiff and

look to the pleader's intent." ld A party's standing to pursue a cause of action is a

question of law. See N. Alamo Water Supply Corp. v. Tex Dep't of Health, 839

S.w.2d 455,457 (Tex.App.-Austin 1992, writ denied). Consequently, we review the

trial court's actions de novo. Mayhew v. Town of Sunnyvale, 964 s.W.2d 922,928

Tex. 1998).

Appellant Joseph Andre Davis argues Subject Matter Jurisdiction must be decided

if this court notices the issue at any time during an appeal as noted, it is settled

that question of subject matter jurisdiction cannot be waived, and must be

decided if raised at any time, including on the Court's own motion and even for

the first time at the oral argument on appeal. See Smith v. City of Santa Fe, 2007-

NMSC-055,10,142N.M.786,171 P.3d 500 (Before a court can review the

case...jurisdictional issues should always be resolved even if not preserved");

Wilson v. Denver, 1998-NMSC-016, 8, 125 N,tvt 308,961 P.2d 153 ("A

jurisdictional defect may not be waived and may be raised at any stage of the

proceedings, even sua sponte by the appellate court.");Parental interests are a

fundamental right protected by the Due Process Clause of the Fourteenth

Amendment that warrant the close consideration of this Court, it would seem

that this would also affect this Court’s rulings on appeals from other future

appeals of fundamental liberty interests” recognized by the United States

Supreme Court. The Texas Supreme Court has held that a child must be in

imminent danger of physical or emotional harm for there to be a serious question

concerning the child’s physical health or welfare. The grandparents in In the

Interest of ALS, filed suit requesting appointment as managing conservators after

the death of their son. The court cases show that a challenge to a grandparent’s

standing asserted under Texas Family Code § 102.004(a)(1) requires the

grandparent to make a prima facie showing of potential harm. The grandparents

must be fully prepared to put on evidence of facts that will demonstrate a serious

question or concern about the child’s health or welfare. A grandparent seeking

custody has an incredibly high burden of proof to meet the standing requirements.

This Court’s summary affirmance of the lower court’s decision has significant

precedential impact on parent's fundamental liberty interest where there was no

evidence that the parent was unfit, that the children's health and well-being

would suffer, or that the parent intended to exclude grandparent access entirely,

thereby making this an issue of exceptional importance warranting en banc

review.

Situations where petitions for a writ of mandamus is appropriate in family law

cases include (1) standing and jurisdiction (under UCCJEA or UIFSA, (2)

appointment of a receiver in temporary orders, (3) change of the conservator

with the right to designate the primary residence of a child in temporary orders,

(4) certain discovery disputes, (5) and failure of the trial court to enter an order

after rendition (the court’s oral ruling on the record). In these situations, given

the issues at stake, it is often appropriate to request that the court of appeals

enter an emergency stay prohibiting the trial court from taking any action to

enforce or proceed with the challenged order until the court of appeals can

decide the mandamus case. The First Court of Appeals denied my child custody

Writ of Mandamus of a non-parent (grandparent) custody lawsuit and my Motion

of Stay without explanation most situations above were included in my petition

for a Writ of Mandamus and a Motion to Stay.

Jurisdiction and Venue of Child Custody Lawsuits

Texas residents: Texas has very specific laws to determine whether a custody case

has been filed in the correct court. Disputes arise when one parent does not reside

in Texas or one parent does not reside in the same county as the other parent. In

such cases, Texas law will determine which the proper court to hear the dispute is.

Texas Residents: It is a fairly simple procedure to determine the proper court for

the child custody dispute when all parties and the child reside in Texas. In such

case, Texas will have jurisdiction to hear the matter. It is only necessary to

determine the proper county the suit should proceed in. Section 103.001 of the

Family Code provides that an original suit must be filed in the county the child

resides in. Petitioner Floyd Daniel allegedly filed Original Child custody lawsuit

on October 07, 2014. 245th District Court's continuing exclusive jurisdiction

under Chapter 155 was terminated May 30, 2014.

A child resides in the county where the child's parents reside or the child's parent

resides, if only one parent is living. J.A.D. and her only surviving parent, Joseph

Andre Davis was residing, at the time the lawsuit was allegedly filed by Petitioner

Floyd Daniel Lopez in Harris County 245th District Court on October 7, 2014, in

Montgomery County and continue to reside in Montgomery County. Harris

County 245th District Court has been and still is aware of that fact.

If venue of a suit is improper in the court in which an original suit is filed and no

other court has continuing, exclusive jurisdiction of the suit, on the timely motion

of a party other than the petitioner, the court must transfer the proceeding to the

county where venue is proper. This Court’s summary affirmance of the lower

court’s decision has significant precedential impact on parent's fundamental liberty

interest where there was no evidence that the parent was unfit, that the children's

health and well-being would suffer, or that the parent intended to exclude

grandparent access entirely, thereby making this an issue of exceptional

importance warranting en banc review.

Rehearing en banc should be granted because such consideration is necessary to

maintain uniformity in the court’s decisions.

1. Motion for rehearing en banc. I express a belief, based on a reasoned and

studied judgment, which the panel decision is of exceptional

importance. I express a belief, based on a reasoned and studied judgment,

that the panel decision is contrary to the following decisions of this court and

that a consideration by the full court is necessary to maintain uniformity of

decisions in this court, other Texas Appellate Courts and State Supreme

Court. (See appendix A)

2. Motion to request a written opinion. I express a belief, based upon a

reasoned and studied judgment, that a written opinion will provide a

legitimate basis for Supreme Court review because this case involves matters

that directly implicate fundamental rights protected by the Due Process

Clause of the Fourteenth Amendment to the United States Constitution.

PRAYER

Respondent prays for justice to prevail, that the Court grants this petition

and orders Respondents suit, Cause No. 2014-58410 to be dismissed with

prejudice and that it will not be granted a trial. Relator prays that the court

orders underlying respondents Floyd Daniel Lopez, Irma Olga Jimenez and

their Counsel, Norman Eugene Lester Jr. to pay Relator's reasonable

expenses and attorney's fees including interest incurred in presenting or

opposing the motion, and if no due diligence is shown the court may award to

the prevailing party all costs for inconvenience, harassment, and out-of-

pocket expenses incurred or caused by the subject. Relator prays that

underlying respondents Floyd Daniel Lopez and Irma Olga Jimenez will be

denied further possession of, access to and all contact with Relator's minor

child J.A.D. Relator prays that all adverse interlocutory rulings that merged

in the judgment issued by 245th District Court on April 10, 2015 be rendered

null and void including the judgment to pay Amicus Attorney/Guardian

Ad Litem/Parenting Facilitator the sum of $3,062.50 or any sum at

all. Relator prays for general relief and all other relief the court

deems just and proper.

_________________________08/04/2015

Joseph Andre Davis, Pro Se

3714 Pinebrook Hollow Ln.

Spring, Texas 77386

Tel: (832)660-7207

Jdavis1103@hotmail.com

CERTIFICATION OF SERVICE

I certify that a true copy of the above was served on Respondents Floyd

Daniel Lopez and Irma Olga Jimenez's Counsel Norman Eugene Lester Jr,

by E-Mail: HouTxLawyer@aol.com and served by E-File to 245th District

Judge Roy L. Moore and Associate Judge James Cooper in accordance with

the Texas Rules of Civil Procedure on

_________________________

08/04/2015

JOSEPH ANDRE DAVIS, PRO SE

I, ________________certify that I have reviewed the petition and concluded

that every factual statement in the petition is supported by competent evidence

included in the appendix or record.

APPENDIX A

A.TEXAS SUPREME COURT CASES WITH OPINIONS

in re Chambless No. 07-0767 ,51 Texas S.Ct. j111, (Texas 2008) (grandparent

visitation improperly granted, mother's due process rights disregarded)

Mandamus granted.

In re mays-Hooper, 189 S.W. 3d 777 (Texas 2006) (Parents prevail in dispute

over grandparent visitation) Supreme Court grants mandamus relief.

In re Ricky Derzapf, No. 06-0669,219 S.W. 3d 327 (Texas 2007) , Texas

Supreme Court grants mandamus to vindicate natural parent's superior

rights.

CONTROLING U. S. SUPREME COURT PRECEDENT

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L. Ed 49 (2000) ( parents

fundamental right to decide who has access to their child.

A plaintiff must have standing for the court to have subject-matter

jurisdiction to decide the merits of the plaintiff's claims. See id.; Farmers

Tex. County Mut. Ins. Co. v. Romo, 250 S.W.3d 527, 532 (Tex.App.-

Austin 2008, no pet.).

The plaintiff must allege facts that affirmatively demonstrate the court's

jurisdiction to hear the cause. Texas Ass'n of Bus., 852 S.W.2d at 446.

The general test for standing is whether there is a real controversy between

the parties that will actually be determined by the judicial declaration

sought. Id.

Standing focuses on the question of who may bring a lawsuit. Patterson v.

Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998).

STANDING

To bring an action in Texas, a party must have standing. E.g.,

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)

Standing is a component of subject-matter jurisdiction. Douglas v. Delp,

987 S.W.2d 879, 882 (Tex. 1999);

OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726,

735 (Tex. App.-Dallas 2007, pet. denied); see also DaimlerChrysler Corp. v.

Inman, 252 S.W.3d 299, 304 (Tex. 2008)

(“A court has no jurisdiction over a claim made by a plaintiff without

standing to assert it.”) (footnote omitted). Thus, standing cannot be waived,

and we may examine standing sua sponte if necessary. See OAIC, 234

S.W.3d at 735;

see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-

46 (Tex. 1993) (noting that standing “may be raised for the first time on

appeal by the parties or by the court”).

The general test for standing is whether there is a real controversy between

the parties that will actually be determined by the judgment sought. Tex.

Ass'n of Bus., 852 S.W.2d at 446.

“To establish standing, a person must show a personal stake in the

controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996) (per curiam).

Standing must exist at the time a plaintiff files suit; if the plaintiff lacks

standing at the time of filing, the case must be dismissed, even if the

plaintiff later acquires an interest sufficient to support standing. Doran v.

ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 WL 451879, at *2 (Tex.

App.-Dallas Feb. 21, 2008, no pet.) (mem. op.);

Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 703 (Tex. App.-Fort Worth 2006,

pet. denied). And the standing doctrine requires a controversy to continue

to exist between the parties at every stage of the legal proceedings,

including the appeal. City of Dallas v. Woodfield, 305 S.W.3d 412,

416 (Tex. App.-Dallas 2010, no pet.).

Standing is a component of subject-matter jurisdiction. Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993); see also

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)

“A court has no jurisdiction over a claim made by a plaintiff without standing

to assert it.”). If a party lacks standing to bring an action, the trial court

lacks subject-matter jurisdiction to hear the case.

Tex. Ass’n of Bus., 852 S.W.2d at 444–45.

“[S]tanding focuses on the question of who may bring an action.” Patterson

v. Planned Parenthood, 971S.W.2d 439, 442 (Tex. 1998).

The general test for standing is whether there is a real controversy

between the parties that will actually be determined by the judgment sought.

Tex. Ass’n of Bus., 852 S.W.2d at 446.

“To establish standing, a person must show a personal stake in the

controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996).

Standing to sue may be predicated upon either statutory or common law

authority. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252 (Tex.

App.—Dallas 2005, no pet.);

see Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001). The common

law standing rules apply except when standing is statutorily

conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153

(Tex. App.—El Paso 2007, pet.denied).

Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746,

774 (Tex.2005) ("Standing to assert a constitutional violation depends on

whether the claimant asserts a particularized, concrete injury.")

TEXAS SUPREME COURT CASES

The Standing Doctrine in the Texas Supreme Court

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-446

(Tex. 1993) (standing, as a matter of subject matter jurisdiction, may

be raised for the first time on appeal).

Standing by Statute

The Constitution requires standing to maintain suit. Williams v. Lara,

52 S.W.3d 171, 178

B.CASES DECIDED BY TEXAS COURT OF APPEALS

In re B.N.S. No. 247 S. W. 3d 807 (appeal from order granting grandparents

possession of their three grandchildren. see Texas Family Code section

153.433, because grandparents did not meet statutory requirements of section

153.433 of the family code, appeal court reversed trial court' s judgment and

rendered judgment that grandparent's petition is denied) .

In re J.R.D. No. 05-06-01554 (Texas 2007) (trial court order granting access

reversed by court of appeals; grandparents did not meet burden set by statute

to rebut parental presumption.

In re D. R. D. No. 05-06-00666 (Texas 2008) (grandparent access denied , no

evidence to support applicable standard, i.e., that denial of access would

significantly impair the child's physical health or emotional well- being)

In re J.P.C. No. 02-07-00184 (Texas 2008) (death of a parent, grandparent

intervention unsuccessful, access order reversed by court of appeals.)

In re Taylor v. Taylor, 254 S.W. 3d S.W. 527 (Texas 2008) (grandparent v.

parent SAPCR judgment on jury verdict reversed)

In Interest of C.A.M.M., 243 S.W. 3d 211 (Texas 2007) (SAPCR, non parent

custody, grandparents must overcome presumption that parents act in the

best interest of child)

Whitworth v.Whitworth 222 S. W. 3d 616 (Texas 2007 no Pet.) (grandparents

and siblings lacked standing)

In re J.O., No 04-07-00752 (Texas 2008 No. Pet.) (grandparents as temporary

managing conservators, parental presumption affirmed)

In re de Fillippi, No. 04-07-00506, 235 S.W. 3d 319 (Texas 2007) (Children

ordered returned to father after mother's death, superior custodial rights

compared to grandparents)

In re Sanchez, No. 04-06-00809, 228 S.W. 3d 214 (Texas 2007) (trial court

failed to apply law properly, in suit by grandparents to modify parent child

relationship writ of mandamus is granted.)

In re Banta v. Texas DFPS, No. 13- 06-00548 (Texas 2007) (grandparent

access denied)

In re Baggs v. Becker , No. 03-07-00731 (Texas 2009 pet. denied)

In re L.K.W.G., No. 06-06-00073 (Texas 2007 (Pre se grandparent suit motion

for visitation frivolous suit finding, sanctions imposed)

DETERMINATION OF STANDING

Standing, a necessary component of subject-matter jurisdiction, is a

constitutional prerequisite to maintaining a suit under Texas law. Tex.

Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

As a necessary component of a court's subject-matter jurisdiction,

standing cannot be waived and can be raised for the first time on

appeal. Id. at 445-46.

Appellate courts are obligated to review sua sponte issues affecting

jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).

See also Bowles v. Wade, 913 S.W.2d 644, 647 (Tex. App.-Dallas 1995,

writ denied); Centurion Planning Corp., Inc. v. Seabrook Venture II,

176 S.W.3d 498, 508 (Tex. App.-Houston [1st Dist.] 2004, no pet.).

Whether a trial court has subject-matter jurisdiction is a question of

law that is reviewed de novo. See Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998).

To have standing, the pleader bears the burden of alleging facts that

affirmatively demonstrate the court's jurisdiction to hear the cause.

Tex. Air Control Bd., 852 S.W.2d at 446.

We review the pleadings and the entire record to determine if there is

evidence establishing subject-matter jurisdiction. Dallas County

Appraisal Dist. v. Funds Recovery,887 S.W.2d 465, 469 (Tex. App.-

Dallas 1994, writ denied).

In an appeal from a bench trial, findings of fact carry the same weight

as a jury verdict. Walker v. Cotter Prop., Inc., 181 S.W.3d 895, 899 (Tex.

App.-Dallas 2006, no pet.).

Unchallenged findings of fact are conclusive on appeal unless the

contrary is established as a matter of law or there is no evidence to

support the findings. Toles v. Toles, 45 S.W.3d 252, 265 n.6 (Tex.

App.-Dallas 2001, pet. denied) (citing McGalliard v. Kuhlmann, 722

S.W.2d 694, 696 (Tex. 1986)).

Where an appellant attacks the trial court's findings of fact on legal or

factual sufficiency grounds, the applicable standard of review is the

same as that to be applied in the review of jury findings. Walker, 181

S.W.3d at 899.

In evaluating the legal sufficiency of the evidence to support a

finding, we must determine whether the evidence as a whole rises to a

level that would enable reasonable and fair-minded people to differ in

their conclusions. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198

S.W.3d 408, 414 (Tex. App.-Dallas 2006, pet. denied) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).

Anything more than a scintilla of evidence is legally sufficient to

support a challenged finding. Walker, 181 S.W.3d at 899.

More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about

the existence of some vital fact. Id.

We review the trial court's conclusions of law de novo to determine

whether they are correct. See McIntyre v. Comm'n for Lawyer

Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, pet. denied);

Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 906

(Tex. App.-Dallas 2005, pet. denied). Conclusions of law must be

upheld on appeal if any legal theory supported by the evidence

sustains the judgment, and will be reversed only if the conclusions

are erroneous as a matter of law. See McIntyre, 169 S.W.3d at 807.

B. Applicable Law

1. Standing, Generally

In Texas, the standing doctrine requires that (1) there be “a real

controversy between the parties,” and (2) that real controversy “will

be actually determined by the judicial declaration sought.” Nootsie,

Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.

1996) (quoting Tex. Air Control Bd., 852 S.W.2d at 446).

“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. v. Lovato, 171 S.W.3d

845, 848 (Tex. 2005) (quoting 6A Charles Alan Wright, Arthur R. Miller,

and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and

Procedure: Civil 2d § 1559, 441 (2d ed. 1990)).

“The determination of whether a plaintiff possesses standing to

assert a particular claim depends on the facts pleaded and the cause

of action asserted.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853

(Tex. App.-Fort Worth 2005, no pet.). See also M.D. Anderson Cancer

Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001) (analyzing standing in

the context of asserted claim).

When standing has been statutorily conferred, the statute itself

serves as the proper framework for a standing analysis. Everett, 178

S.W.3d at 851. The plaintiff must allege and show how he has been

injured or wronged within the parameters of the language used in the

statute. Id.

STANDING

FOR THE NOT-SO-NUCLEAR FAMILY

ANGELINE BAIN

abain@gbfamilylaw.com

AIMEE PINGENOT

apingenot@gbfamilylaw.com

Goranson, Bain, Larson, Greenwald, Maultsby & Murphy, PLLC

8150 North Central Expressway, Suite 1850

Dallas, Texas 75206

(214) 373-7676

KEVIN FULLER

kevin@koonsfuller.com

EMILY MISKEL

emily@koonsfuller.com

KoonsFuller, P.C.

1717 McKinney Avenue, Suite 1500

Dallas, Texas 75202

(214) 871-2727

Innovations - Breaking Boundaries in Custody Litigation

The University of Texas School of Law

Houston, Texas

January 19, 2012

TABLE OF CONTENTS

I. Scope of Article ........................................................................................................................................ 1

II. What is Standing? ..................................................................................................................................... 1

A. Common Law .................................................................................................................................... 1

B. Specific Statutory Authority.................................................................................................................. 1

C. Parental Presumption............................................................................................................................. 2

III. Standing Provisions, Organized by Client ............................................................................................ 2

A. Grandparents ...................................................................................................................................... 2

1. General Standing for Conservatorship Under Texas Family Code §102.003 ................................... 2

2. Standing Under Texas Family Code §102.004 .................................................................................. 3

3. Standing to Intervene ......................................................................................................................... 4

4. Possession and Access by a Grandparent Under the “Grandparent Access Statute” ........................ 5

B. Siblings .................................................................................................................................................. 6

1. Managing Conservatorship ................................................................................................................ 6

2. Possessory Conservatorship .............................................................................................................. 6

3. Access ................................................................................................................................................ 6

C. Aunts, Uncles, and Other Relatives within the Third Degree of Consanguinity .................................. 7

1. Definition of Consanguinity .............................................................................................................. 7

2. Both Parents Deceased ...................................................................................................................... 7

3. Living Parent(s) ................................................................................................................................. 8

4. Possessory Conservatorship .............................................................................................................. 8

D. Stepparents......................................................................................................................................... 8

1. Deceased Parent ................................................................................................................................. 8

2. Living Parents .................................................................................................................................... 9

E. Non-relative ........................................................................................................................................... 9

F. Foster parents ...................................................................................................................................... 11

1. Family Code 102.003(a)(12) ........................................................................................................... 11

2. Family Code 102.004(b) .................................................................................................................. 11

3. Family Code 102.003(c) .................................................................................................................. 11

G. Prospective Adoptive Parent Standing ............................................................................................ 12

1. Family Code 102.003(a)(14) ........................................................................................................... 12

2. Family Code 102.0035 .................................................................................................................... 12

3. In the Interest of S.S.G. ................................................................................................................... 12

H. Same Sex couples ............................................................................................................................ 13

1. Family Code 102.003(a)(9) ............................................................................................................. 13

2. Same Sex Adoption ......................................................................................................................... 16

I. Designated Guardian: Connecting the Probate Code to the Family Code .......................................... 17

J. Standing to Adjudicate Parentage ....................................................................................................... 17

IV. Challenging Standing .......................................................................................................................... 18

V. Appendix A, Texas Family Code Standing Provisions ....................................................................... 19

A. Chapter 102...................................................................................................................................... 19

B. Chapter 153 ......................................................................................................................................... 21

C. Chapter 156 ......................................................................................................................................... 22

D. Chapter 160...................................................................................................................................... 23

i

Under the Texas Constitution, the standing

I. Scope of Article requirement is also derived from the open courts

Standing is a mandatory requirement, but provision, which contemplates access to the courts

fitting your case to one of the many options under only for those litigants suffering an injury.

the Family Code can be complicated. The goal of Specifically, the open courts provision provides:

this paper is to discuss how to apply standing “All courts shall be open, and every person for an

requirements from a client-based perspective. The injury done him, in his lands, goods, person or

paper is organized by type of person seeking reputation, shall have remedy by due course of

standing (e.g., grandparent, aunt, foster parent), law.” 2

together with the relevant statutes and caselaw Because standing is a component of subject

applying to each. The paper was designed to matter jurisdiction, it cannot be waived and may

provide useful information, organized by how be raised by any party or by the court on its own

you’re most likely to need to access it. motion. The issue of standing may even be raised

for the first time on appeal.

II. What is Standing? Standing is determined at the time suit is filed

Standing is an issue that family law in the trial court. 3 Standing to sue does not mean

practitioners frequently encounter in a very a right to win, but merely a right to be heard in

practical way. While knowing the explicit court. 4

requirements of the Family Code is key, it can be

useful to have an understanding of the abstract A. Common Law

legal doctrines underlying the requirement of The general test for standing in Texas requires

standing. The Texas Supreme Court opinion in the that there (a) shall be a real controversy between

Texas Ass'n of Business v. Air Control Bd. 1 case the parties, which (b) will be actually determined

contains a thorough discussion of the sources of by the judicial declaration sought. 5 Standing

the standing requirement, which is summarized requires the claimant to demonstrate a

below: particularized injury distinct from that suffered by

Standing is a feature of subject matter the general public—there must be an actual

jurisdiction, which is essential to the authority of a grievance, not a hypothetical or generalized

court to decide a case. Subject matter jurisdiction grievance. 6 This general test incorporates the

is never presumed and cannot be waived. The requirements that courts may only decide real

standing requirement stems from two limitations cases or controversies brought by a person who

on subject matter jurisdiction: the separation of has suffered an actual injury.

powers doctrine and the open courts provision. B. Specific Statutory Authority

The separation of powers doctrine stems from In family cases, it is usually obvious that there

both the United States and Texas constitutions. is a real controversy, but the difficult part of the

Under this doctrine, governmental authority vested test is determining which groups of people should

in one branch of government cannot be exercised qualify as persons who have suffered an injury.

by another, unless expressly permitted by the The Family Code spells out specific categories of

constitution. Thus, courts are prohibited from people that the Legislature has determined meet

issuing advisory opinions, because that is the this standing requirement.

function of the executive branch. The distinctive Standing for Original Suits. Tex Fam. Code

feature of an advisory opinion is that it decides an Chapter 102, §§ 102.003-102.007.

abstract question of law without binding the

parties. An opinion issued in a case brought by a 2

TEX. CONST. art. I, § 13.

3

party without standing is advisory because rather In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas

than remedying an actual or imminent harm, the 2008, no pet.)..

4

Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El

judgment addresses only a hypothetical injury.

Paso 2002, no pet.).

Texas courts, like federal courts, have no 5

Board of Water Engineers v. City of San Antonio, 155 Tex.

jurisdiction to render such opinions. 111, 114, 283 S.W.2d 722, 724 (1955).

6

Glover v. Union Pac. R.R., 187 S.W.3d 201, 209

(Tex.App.-Texarkana 2006, pet. denied); see Brown v. Todd,

53 S.W.3d 297, 302 (Tex.2001); see also In re H.C.S., 219

1

852 S.W.2d 440, 443-48 (Tex. 1993). S.W.3d 33, 34 (Tex. App.-San Antonio 2006, no pet.).

1

Standing for Modifications. Tex. Fam. Code presumption merely to have standing to bring

§ 156.002(b): “A person or entity who, at the suit. 14

time of filing, has standing to sue under

Chapter 102 may file a suit for modification III. Standing Provisions, Organized by Client

in the court with continuing, exclusive A. Grandparents

jurisdiction.” Family law cases have increasingly

The Family Code is more restrictive than the focused on the rights of grandparents both in

constitutional requirement of a justiciable seeking conservatorship and seeking visitation

interest. 7 The common-law criteria regarding with their grandchildren. Many standing issiues

standing do not apply when the Texas Legislature experienced by grandparents are examined below

has conferred standing through a statute. 8 In through statutes and relevant case law.

statutory standing cases, the analysis is a straight

statutory construction of the relevant statute to 1. General Standing for Conservatorship

determine upon whom the Texas Legislature Under Texas Family Code §102.003

conferred standing and whether the claimant in Grandparents, as non-parents litigants,

question falls in that category. 9 have limited options to maintain standing to file an

original SAPCR seeking custody of a grandchild.

C. Parental Presumption If a grandparent can qualify under any of the

In an original suit affecting the parent child fourteen categories of the general standing statute

relationship, Texas courts apply a “parental as set forth above, a grandparent could potentially

presumption.” The presumption that the best have standing to file for custody under § 102.003.

interest of the child is served by awarding custody The most likely applicable categories under the

to the parent is deeply embedded in Texas law. 10 “general” standing statute, would be under

The parental presumption is codified in the Family §102.003(13) which gives standing to a relative of

Code in § 153.131(a). To prevail in an original the child within the third degree of consanguinity

suit, a nonparent must rebut the parental (which includes grandparents), if both parents of

presumption by showing that the appointment of the child are deceased at the time of filing or

the parent would significantly impair the child's through § 102.003(a)(9) which grants standing to a

health or development, or that the natural parent person, other than a foster parent, who has had

has voluntarily relinquished the child. 11 actual care, control, and possession of the child for

Courts have held that modifications are at least six months ending not more than 90 days

different from original suits. Since modification preceding the date of the filing of the petition.

suits are governed by Chapter 156, the parental Tex.Fam.Code § 102.003(a)(9)(13). Under these

presumption contained in Chapter 153 does not statutes, a grandparent may file an original suit for

apply. 12 Further, courts have held that the custody.

constitution does not require the parental In order to have standing under §

presumption to apply in modification actions, 102.003(a)(9), a grandparent must show “actual

because there are different public policy care, control, and possession” and it must be

concerns. 13 within the specified time frame. §102.003(a)(9)

Most importantly for standing, a nonparent does not specifically speak to grandparents, but

does not have to overcome the parental provides means for a grandparent seeking standing

to file an original suit. The statute specifically

7

In re A.M.S., 277 S.W.3d 92, 97 (Tex.App.--Texarkana mentions that the time frame need not be

2009, no pet.). continuous and uninterrupted. Tex. Fam. Code

8

Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). §102.003(b). In the case In the Interest of S.S.J.,

9

In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.--Houston the child’s mother had died and a maternal

[14th Dist.] 2005, orig. proceeding, [mand. denied]); see

grandmother was seeking appointment as

also Tex. Dep't of Protective and Regulatory Servs. v.

Sherry, 46 S.W.3d 857, 859-61 (Tex. 2001). managing conservator. 15 The child at issue had

10

In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).

11 14

Id. at 342. In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston

12

Id. [14th Dist.] 2008, orig. proceeding).

13 15

See In re M.N.G., 113 S.W.3d 27 (Tex.App.--Fort Worth 153 S.W.3d 132, 137 (Tex.App. – San Antonio, 2004, no

2003, no pet.). pet).

2

lived with the grandparents under their care, (2) both parents, the

custody, and control since birth. The father of the surviving parent, or the managing

child argued that even if the grandparents proved conservator or custodian either

the requisite time frame required for standing filed the petition or consented to

under §102.003(a)(9), they must still overcome the the suit.

parental presumption. Id. The court held that the

grandparents had standing under §102.003(a)(9). (b) An original suit requesting

Nothing in the code or case law requires that a possessory conservatorship may

grandparent must go beyond the general not be filed by a grandparent or

requirements of 102.003(a)(9) to obtain standing other person. However, the court

to allege facts showing that that the appointment may grant a grandparent or other

of the parent would significantly impair the child’s person deemed by the court to have

physical health or emotional development in order had substantial past contact with

to have standing. The parental presumption must the child leave to intervene in a

be overcome during a trial on the merits. Id. pending suit filed by a person

Conversely, the court In the Interest of authorized to do so under this

M.J.G and J.M.J.G., denied standing to subchapter if there is satisfactory

grandparents under §102.003(a)(9). 16 The proof to the court that appointment

grandparents did not establish the requisite six of a parent as a sole managing

month period of actual care, custody, and control conservator or both parents as joint

necessary to establish their standing to file an managing conservators would

original SAPCR under §102.003(a)(9). significantly impair the child’s

Additionally, the evidence at trial showed that the physical health or emotional

children’s parents were also living in the house development.

with the grandparents. There was no evidence that

the parents did not also care for the children. Id. (c) Possession of or access to a

child by a grandparent is governed

2. Standing Under Texas Family Code

by the standards established by

§102.004

Chapter 153.

While grandparents may obtain standing

under the general provisions of Texas Family

Section 102.004 applies only to SAPCR’s

Code §102.003 as set forth above, they may also

filed on or after September 1, 2007. Under

obtain standing under additional statutes.

§102.004, in the event if a grandparent does not

Texas Family Code §102.004 provides as

have standing under the general standing statute,

follows:

the fact that the person is a grandparent may

102.004: (a) In addition to the general standing to

confer standing to file either an original suit or an

file suit provided by Section 102.003, a

intervention in a pending suit if the grandparent

grandparent, or another relative of the

can show that the child’s physical health or

child related within the third degree by

emotional stability would be impaired by

consanguinity, may file an original suit

remaining with the parents or if the parents

requesting managing conservatorship if

consent.

there is satisfactory proof to the court that:

Numerous court cases have considered in

what circumstances standing may be conferred

(1) the order requested

upon a grandparent under Texas Family Code

is necessary because the child’s

§102.004.

present circumstances would

A suit by a grandparent requesting

significantly impair the child’s

managing conservatorship may only be filed when

physical health or emotional

the child’s present environment presents a serious

development; or

question concerning the child’s physical health or

16

No. 2-07-105-CV, 2008 WL 344473 (Tex. App.--Fort

Worth).

3

welfare. 17 The Texas Supreme Court has held that to restrict their close relationship with the

a child must be in imminent danger of physical or children, the children would suffer serious

emotional harm for there to be a serious question physical or emotional harm. This was insufficient

concerning the child’s physical health or evidence that the children would be impaired. Id.

welfare. 18 The court cases show that a challenge At least one appellate case has held that the

to a grandparent’s standing asserted under Texas statute does not require that the grandparent and

Family Code § 102.004(a)(1) requires the the child need not have a close bond or a long

grandparent to make a prima facie showing of standing relationship if the “significant

potential harm. The grandparents must be fully impairment” test is met. In In re M.A.M., the

prepared to put on evidence of facts that will court held that the phrase “deemed by the court to

demonstrate a serious question or concern about have had substantial past contact” refers to “other

the child’s health or welfare. A grandparent person” and not “grandparent.” 21 As such, the

seeking custody has an incredibly high burden of mere fact that an intervenor in a pending suit is a

proof to meet the standing requirements. biological grandparent confers standing on the

The grandparents in In the Interest of ALS, grandparent. Id.

filed suit requesting appointment as managing

3. Standing to Intervene

conservators after the death of their son. 19 The Though grandparents may initiate an

father had filed for divorce from the child’s original lawsuit seeking appointment as a

mother months before his death. The child, father managing conservator, they may not file an

and mother sometimes lived at the grandparents’ original lawsuit seeking appointment as a

home. The grandparents filed a petition claiming possessory conservator. Texas Family Code

they had standing under 102.004(a)(1). The §102.004(b) provides that grandparents may only

evidence showed that the mother was bi-polar, had seek appointment as a possessory conservator

been under psychiatric care on and off, through intervention. While the statute requires

hospitalized, and had threatened suicide. Id. The that any person besides a grandparent seeking

grandparents presented an affidavit from an aunt possessory conservatorship have had “substantial

attesting to specific instances of abuse of the child past contact with the child,” such requirement is

by the mother. There was also evidence of the not necessary for grandparents. 22 Courts have

mother’s inability to parent, including failure to held that there is a difference between an original

supervise the child, acts of sexual promiscuity and suit and an intervention, thus necessitating the

pornography in the home, and unsanitary difference in requirements for standing between

conditions in the home. The court held that the both. In the case In the Interest of N.L.G., A Child,

grandparents did have standing under § the court held that filing a suit may create

102.004(a). disruption in a child’s relationship with his or her

Conversely, in another case where the parents, whereas intervening in a pending case,

grandparents sought standing under where the relationship between parent and child is

§102.004(a)(1), the court held that the maternal already disrupted, does not create such

grandparents did not have standing to maintain an disruption. 23 In the case where a relationship is

original suit under §102.004(a)(1). 20 There was no already disrupted, intervention may enhance the

evidence to show that the child’s current court’s ability to adjudicate the cause in the best

circumstances presented a significant impairment interest of the child. Id.

of the child’s physical health or emotional Despite the court’s view that intervention

development of violence witnessed by the might enhance a court’s ability to determine the

children. Id. The entire premise of the best interest of a child, grandparents do not have

grandparents’ argument was that if the court were unfettered access to intervene in any and all

custody matters. The grandparents must show that

17

In re R.D.Y., 51 S.W.3d 314, 325 (Tex. App.—Houston

[1st Dist.], 2001).

18 21

McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont

19

No. 09-05-062 CV, 2006 WL 75369 (Tex. App -- 2001, no pet.).

22

Beaumont). In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.—Beaumont

20

In the Interest of M.J.G. and J.M.J.G, No. 2-07-105-CV, 2001, no pet).

23

2008 WL 344473 (Tex. App.--Fort Worth). 238 S.W.3d 828, 830 (Tex.App.—Fort Worth, 2007).

4

there is “significant impairment” of the child’s relief authorized under Section

physical health or emotional development in order 153.433.

to obtain standing in an intervention. 24

Section 153.431 of the Texas Family Code

4. Possession and Access by a Grandparent

governs suits for access, whether original or

Under the “Grandparent Access Statute”

modification and applies to grandparents, both

The Texas Family Code provides a route

biological and adoptive. Texas Family Code

for grandparents to file suit for possession and

§153.432 allows a biological or adoptive

access of their grandchildren in sections 153.421

grandparent to request possession of or access to a

and 153.432 of the Texas Family Code.

grandchild by filing an original suit or a suit for

modification. Courts have held that “significant

153.431: If both of the parents of a child are

impairment” is a high threshold for grandparents

deceased, the court may consider

to overcome. 25 A grandparent may file suit

appointment of a parent, sister, or brother

requesting only possession of or access to a

of a deceased parent as a managing

grandchild without regard to whether the

conservator of the child, but that

appointment of a managing conservator is an issue

consideration does not alter or diminish the

in the lawsuit. Tex.Fam.Code §153.432(b).

discretionary power of the court.

However, the third prong of this section

presents difficulty in many cases as the person

153.432: (a) A biological or adoptive grandparent

filing the lawsuit must execute and attach an

may request possession of or access to a

affidavit on knowledge or belief that contains

grandchild by filing:

along with supporting facts, the allegation that

(1) an original suit; or

denial of possession of or access to the child by

(2) a suit for modification as

the petitioner would significantly impair the

provided by Chapter 156.

child’s physical health or emotional well-being.

(b) A grandparent may request

Tex.Fam.Code 153.432(c). The court shall deny

possession of or access to a

the relief sought and dismiss the lawsuit unless the

grandchild in a suit filed for the

court determines that the facts stated in the

sole purpose of requesting the

affidavit, if true, would be sufficient to support the

relief, without regard to whether

relief authorized under Section 153.433. Id. A

the appointment of a managing

trial court abuses its discretion if it grants

conservator is an issue in the suit.

grandparents access to their grandchildren without

meeting this standard. 26

(c) In a suit described by

Subsection (a), the person filing the

It is important to note that a biological or

suit must execute and attach an

adoptive grandparent may not request possession

affidavit on knowledge or belief

of or access to a grandchild if:

that contains, along with supporting

facts, the allegation that denial of

(1) each of the biological

possession of or access to the child

parents of the grandchild has:

by the petitioner would

(A) died;

significantly impair the child's

(B) had the person’s

physical health or emotional well-

parental rights terminated; or

being. The court shall deny the

(C) executed an affidavit

relief sought and dismiss the suit

or waiver of interest in child or an

unless the court determines that the

affidavit of relinquishment of

facts stated in the affidavit, if true,

parental rights under Chapter 161

would be sufficient to support the

and the affidavit designates an

24 25

In re M.J.G., 248 S.W.3d 753, 761 (Tex.App.—Fort In re Derzaph, 219 S.W.3d 327, 331 (Tex. 2007).

26

Worth, 2008). Derzaph, 219 S.W.3d at 333; In re J.M.T., 280 S.W.3d

490, 493 (Tex.App.—Eastland 2009, no pet.).

5

authorized agency, licensed child- (2) both parents, the surviving parent, or

placing agency, or person other the managing conservator or custodian

than the child’s stepparent as the either filed the petition or consented to

managing conservator for the child’ the suit.

and

2. Possessory Conservatorship

(2) the grandchild has been An adult sibling may obtain possessory

adopted, or is the subject of a conservatorship by intervening in a pending suit:

pending suit for adoption, by a 102.004(b): An original suit requesting

person other than the child’s possessory conservatorship may not be

stepparent. filed by a grandparent or other person.

Tex.Fam.Code §153.434. However, the court may grant a

B. Siblings grandparent or other person deemed by the

court to have had substantial past contact

1. Managing Conservatorship

with the child leave to intervene in a

An adult sibling has standing to seek

pending suit filed by a person authorized to

conservatorship if they can meet one of the

do so under this subchapter if there is

general standing requirements in Chapter 102. The

satisfactory proof to the court that

general standing terms most likely to apply to a

appointment of a parent as a sole managing

sibling are:

conservator or both parents as joint

102.003(a)(9): a person, other than a foster

managing conservators would significantly

parent, who has had actual care, control,

impair the child's physical health or

and possession of the child for at least six

emotional development.

months ending not more than 90 days

preceding the date of the filing of the 3. Access

petition; An adult sibling has standing to file a suit

102.003(a)(11): a person with whom the child seeking access to siblings who have been

and the child's guardian, managing separated through DFPS actions:

conservator, or parent have resided for at 102.0045: (a) The sibling of a child may file

least six months ending not more than 90 an original suit requesting access to the

days preceding the date of the filing of the child as provided by Section 153.551 if the

petition if the child's guardian, managing sibling is at least 18 years of age.

conservator, or parent is deceased at the (b) Access to a child by a sibling of the child is

time of the filing of the petition; or governed by the standards established by

102.003(a)(13): a person who is a relative of Section 153.551.

the child within the third degree by 153.551: (a) The sibling of a child who is

consanguinity, as determined by Chapter separated from the child because of an

573, Government Code, if the child's action taken by the Department of Family

parents are deceased at the time of the and Protective Services may request access

filing of the petition. to the child by filing:

102.004(a): In addition to the general standing (1) an original suit; or

to file suit provided by Section 102.003, a (2) a suit for modification as provided by

grandparent, or another relative of the Chapter 156.

child related within the third degree by (b) A sibling described by Subsection (a) may

consanguinity, may file an original suit request access to the child in a suit filed for

requesting managing conservatorship if the sole purpose of requesting the relief,

there is satisfactory proof to the court that: without regard to whether the appointment

(1) the order requested is necessary of a managing conservator is an issue in

because the child's present the suit.

circumstances would significantly (c) The court shall order reasonable access to

impair the child's physical health or the child by the child's sibling described by

emotional development; or Subsection (a) if the court finds that access

is in the best interest of the child.

6

156.002(c): The sibling of a child who is (2) the number of generations between the

separated from the child because of the relative and the nearest common

actions of the Department of Family and ancestor.

Protective Services may file a suit for (c) An individual's relatives within the third

modification requesting access to the child degree by consanguinity are the

in the court with continuing, exclusive individual's:

jurisdiction. (1) parent or child (relatives in the first

Although only the first section contains an explicit degree);

requirement that the sibling be at least 18 years of (2) brother, sister, grandparent, or

age, one court has held that minor siblings do not grandchild (relatives in the second

have any standing to seek access: “Although degree); and

section 153.551 establishes a statutory right to (3) great-grandparent, great-grandchild,

seek sibling access, section 102.0045 requires the aunt who is a sister of a parent of the

sibling requesting access to be at least 18 years of individual, uncle who is a brother of a

age. Since [the minor child] is not at least eighteen parent of the individual, nephew who is

years of age, she does not have standing to seek a child of a brother or sister of the

sibling access.” 27 individual, or niece who is a child of a

brother or sister of the individual

C. Aunts, Uncles, and Other Relatives within

(relatives in the third degree).

the Third Degree of Consanguinity

Note: A cousin is not a relative within the third

1. Definition of Consanguinity degree of consanguinity. 28 A great-aunt or great-

Tex. Gov. Code § 573.022. Determination of uncle is not a relative within the third degree of

Consanguinity: consanguinity. 29

(a) Two individuals are related to each other Section 102.004 requires the relationship to

by consanguinity if: be within three degrees of consanguinity, not three

(1) one is a descendant of the other; or degrees of affinity. 30 While often used together,

(2) they share a common ancestor. consanguinity and affinity are distinct concepts

(b) An adopted child is considered to be a with different definitions. 31 Courts presume the

child of the adoptive parent for this Texas Legislature was familiar with the definitions

purpose. and chose to permit petitions filed by individuals

Tex. Gov. Code § 573.023. Computation of related within three degrees of consanguinity, but

Degree of Consanguinity: not within three degrees of affinity. 32 Therefore, a

(a) The degree of relationship by person who is related by marriage but who does

consanguinity between an individual and not share a common ancestor with the child cannot

the individual's descendant is determined qualify for standing under the sections of the

by the number of generations that separate Family Code requiring consanguinity.

them. A parent and child are related in the

first degree, a grandparent and grandchild 2. Both Parents Deceased

If both of a child’s parents are deceased, then a

in the second degree, a great-grandparent

relative within the third degree of consanguinity

and great-grandchild in the third degree

can have standing under the following sections:

and so on.

102.003(a)(13): a person who is a relative of

(b) If an individual and the individual's relative

the child within the third degree by

are related by consanguinity, but neither is

consanguinity, as determined by Chapter

descended from the other, the degree of

573, Government Code, if the child's

relationship is determined by adding:

(1) the number of generations between the

individual and the nearest common 28

Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App. 2002).

ancestor of the individual and the 29

In re N.L.D., No. 06-10-00132-CV (Tex.App.—Texarkana

individual's relative; and 2011).

30

In re A.M.S., 277 S.W.3d 92, 98 (Tex.App.--Texarkana

2009, no pet.).

27 31

In re S.L.M., No. 4-07-00566-CV (Tex.App.—San Id.

32

Antonio June 18, 2008) (memo op.). Id.

7

parents are deceased at the time of the he or she has had substantial past contact with a

filing of the petition. child:

153.431: If both of the parents of a child are 102.004(b): An original suit requesting

deceased, the court may consider possessory conservatorship may not be

appointment of a parent, sister, or brother filed by a grandparent or other person.

of a deceased parent as a managing However, the court may grant a

conservator of the child, but that grandparent or other person deemed by the

consideration does not alter or diminish the court to have had substantial past contact

discretionary power of the court. with the child leave to intervene in a

pending suit filed by a person authorized to

3. Living Parent(s)

do so under this subchapter if there is

If a child has a living parent or parents, a

satisfactory proof to the court that

relative may be able to have standing, if they can

appointment of a parent as a sole managing

show that the parent(s) consented or that the

conservator or both parents as joint

child’s circumstances are harmful:

managing conservators would significantly

102.004(a): In addition to the general standing

impair the child's physical health or

to file suit provided by Section 102.003, a

emotional development.

grandparent, or another relative of the

The Chavez 36 case discusses this relaxed standing

child related within the third degree by

requirement: Generally, an intervenor must show

consanguinity, may file an original suit

standing to maintain a suit in his own right in

requesting managing conservatorship if

order to intervene. 37 This showing requires that

there is satisfactory proof to the court that:

the intervenor have some present justiciable

(1) the order requested is necessary

interest in the subject matter of the suit.38

because the child's present

However, Section 102.004(b) of the Family Code

circumstances would significantly

specifically provides that grandparents who have

impair the child's physical health or

substantial past contact with the child may be

emotional development; or

granted leave to intervene in a SAPCR. Thus, a

(2) both parents, the surviving parent, or

grandparent need not have standing sufficient to

the managing conservator or custodian

institute a SAPCR in their own right in order to

either filed the petition or consented to

intervene in a pending SAPCR. 39 This relaxed

the suit.

standing rule promotes the overriding policy in all

For standing, there is no requirement that the

SAPCR suits, that of protecting the best interest of

relative prove an immediate danger. 33 That

the child.

requirement does not appear in the current statute,

and it is assumed that the Legislature excluded the D. Stepparents

immediacy requirement for a purpose. 34 The Vogel

1. Deceased Parent

court found that the father’s long-term alcoholism A stepparent who has resided with the child

and recent drinking, as well as testimony that it can seek standing upon the death of the child’s

would be harmful for the child to live with the natural parent:

father, were sufficient for the trial court to find 102.003(11): a person with whom the child

that the child’s present circumstances, if he were and the child's guardian, managing

to live with the father, would significantly impair conservator, or parent have resided for at

his physical health or emotional development. 35 least six months ending not more than 90

4. Possessory Conservatorship days preceding the date of the filing of the

A relative within the third degree of petition if the child's guardian, managing

consanguinity may file suit seeking possessory

conservatorship by intervening in a pending suit, if 36

Chavez v. Chavez, 148 S.W.3d 449, 457 (Tex.App.--El

Paso 2004, no pet.).

37

Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex.App.-

33

In re Vogel, 261 S.W.3d 917, 921 (Tex.App.—Houston El Paso 1995, orig. proceeding); McCord v. Watts, 777

[14th Dist.] 2008, orig. proceeding). S.W.2d 809, 812 (Tex.App.-Austin 1989, no writ).

34 38

Id. Segovia-Slape, 893 S.W.2d at 696.

35 39

Id. See Segovia-Slape, 893 S.W.2d at 696.

8

conservator, or parent is deceased at the relinquish care of the child in order for the other

time of the filing of the petition. person to have standing, and described facts more

Subsection 102.003(a)(11) was designed as a similar to the previous T.W.E. case. 47

"stepparent" statute, affording standing to, among There is a line of cases that holds that it is

others, a stepparent who helps raise a child when very difficult for a person to get standing under

the stepparent's spouse—one of the child's this provision if the child’s parent(s) were also

parents— dies. 40 A traditional application would living with the children. The M.J.G. case held that

indicate that upon the death of the mother, as a “Even though the children were living in the

sole managing conservator of the child, her current [grandparents’] home and the [grandparents]

husband would have standing. 41 performed day-to-day caretaking duties for the

Note, however, that the statutory language is children, the children's parents were also living

not limited merely to stepparents; literally it can with the children in the home, and there was no

also include an unmarried cohabitant or even an evidence that [the parents] did not also care for the

adult sibling of the child of a deceased parent. 42 children or that [the parents] had abdicated their

parental duties and responsibilities to the

2. Living Parents

grandparents.” 48 The court in that case found that

A stepparent who has resided with the child

the grandparents failed to show six months actual

for six months has standing to bring suit:

care, control, and possession sufficient to establish

102.003(a)(9): a person, other than a foster

standing.

parent, who has had actual care, control,

There is no bright line rule in the cases

and possession of the child for at least six

showing exactly how much the biological parent

months ending not more than 90 days

must have relinquished control in order for the

preceding the date of the filing of the

other resident of the household to have standing to

petition.

seek conservatorship. However, courts are looking

Although the stepparent would not have to

for some actual relinquishment of caregiving

overcome the parental presumption to gain

duties by the biological parent. It is clear that in

standing, in order to prevail in an original suit, the

order to prevail on the case, the non-parent would

stepparent must overcome the parental

have to overcome the parental presumption, but it

presumption. For example, even though a husband

is unclear how much courts are expecting with

finds out that he is not the biological father of the

regards to merely obtaining standing.

child, he has standing to sue for appointment as

managing conservator because he had actual E. Non-relative

possession and control of the child for six months The provisions governing standing for a non-

immediately before the suit was filed. 43 Because relative are found in §102.003(a) or §102.004(b).

of the parental presumption, however, a stepfather

or live-in boyfriend of six months does not litigate 102.003(a): An original suit may be filed at

custody against the mother on equal terms. 44 any time by:

The statute does not require that the person …….

asserting standing demonstrate he had exclusive (2) the child through a representative

control of the child. 45 However, the person must authorized by the court;

have some legal right of control over the child or (3) a custodian or person having the right of

authority to make decisions on behalf of the visitation with or access to the child appointed

child. 46 The dissent disagreed with the holding by an order of a court of another state or

that the biological parent must somehow country;

(4) a guardian of the person or of the estate of

40

Id. at 358. the child;

41

Id. (5) a governmental entity;

42

Id. at 356 (6) an authorized agency;

43

T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex.App.—San

(7) a licensed child placing agency;

Antonio 1992, no writ).

44

Id. at 809.

45 47

In re K.K.C., 292 S.W.3d 788, 793 (Tex.App.--Beaumont Id. at 794-95.

48

2009, orig. proceeding). In re M.J.G., 248 S.W.3d 753, 758-59 (Tex.App.--Fort

46

See Id. Worth 2008, no pet.).

9

(8) a man alleging himself to be the father of conservator or both parents as joint

a child filing in accordance with Chapter 160, managing conservators would significantly

subject to the limitations of that chapter, but impair the child's physical health or

not otherwise; emotional development.

(9) a person, other than a foster parent, who

has had actual care, control, and possession of For a non-relative to meet this burden,

the child for at least six months ending not such individual must show that he or she has had

more than 90 days preceding the date of the substantial past contact with the child. However,

filing of the petition; the term “substantial past contact” is not defined

(10) a person designated as the managing by statute or case law.

conservator in a revoked or unrevoked In the Interest of H.B.N.S., a Child,

affidavit of relinquishment under Chapter 161 involved the termination of parental rights and

or to whom consent to adoption has been adoption proceeding where two unrelated couples

given in writing under Chapter 162; were attempting to adopt a child. The court held

(11) a person with whom the child and the that the parents of the child’s babysitter had

child's guardian, managing conservator, or standing to intervene based upon their substantial

parent have resided for at least six months past contacts with the child. 49 In the case, the

ending not more than 90 days preceding the birth mother allowed the child to go home from

date of the filing of the petition if the child's the hospital after birth with the Bolton family.

guardian, managing conservator, or parent is While they did not intend to adopt her, the Boltons

deceased at the time of the filing of the took her home and cared for her. During that year,

petition; they hired a babysitter to care for the child and the

(12) a person who is the foster parent of a babysitter would take the child to her parent’s

child placed by the Department of Family and home. Two years later, the birth mother executed

Protective Services in the person's home for at an Affidavit of Relinquishment of Parental Rights

least 12 months ending not more than 90 days and designated the Boltons as managing

preceding the date of the filing of the petition; conservators of the child. The Boltons then file a

(13) a person who is a relative of the child termination and adoption suit. The babysitter’s

within the third degree by consanguinity, as parents, the Shultzes, petitioned for intervention

determined by Chapter 573, Government and were ultimately granted standing after

Code, if the child's parents are deceased at the showing that they provided ongoing care for

time of the filing of the petition; or extensive periods of time; took the child on family

(14) a person who has been named as a vacations; had the child participate in family

prospective adoptive parent of a child by a celebrations and holidays; provided the child with

pregnant woman or the parent of the child, in a room in their home and lake house; and were the

a verified written statement to confer standing ones contacted by the school and had authority to

executed under Section 102.0035, regardless pick up the child from school. 50 Ultimately, the

of whether the child has been born. appellate court terminated the birth parents’ rights

and appointed the Shultzes as the child’s sole

Section 102.004(b) allows non-parents to managing conservator and the Boltons as the

intervene in a pending SAPCR. possessory conservator based upon their extensive

102.004(b): An original suit requesting involvement in the child’s life.

possessory conservatorship may not be The case, In the Interest of N.B.B. and

filed by a grandparent or other person. J.B.B. extending standing to a neighbor of a parent

However, the court may grant a under §102.004(b). 51 The case involved an

grandparent or other person deemed by the unmarried mother and father who had two

court to have had substantial past contact children, one with Downs Syndrome. The parents

with the child leave to intervene in a

49

pending suit filed by a person authorized to 2007 Tex.App. LEXIS 5541 (Tex.App.—Houston [14th

do so under this subchapter if there is Dist.] 2007, pet. denied, Nov. 9, 2007).

50

Id.

satisfactory proof to the court that 51

2007 Tex.App. LEXIS 8639 (Tex.App. San Antonio Oct.

appointment of a parent as a sole managing 31, 2007).

10

separated and the mother moved away from the the child. The standing to file suit under this

father and placed the child with Downs Syndrome subsection applies only to the adoption of a child

in a residential facility and let the other child live who is eligible to be adopted.

with a neighbor when she found out that she was

terminally ill. Upon the mother’s death, the father An original suit may be filed at any time by a

came to Texas to take possession of the children, person who is the foster parent of a child placed

but the neighbor refused to surrender the child in by the Department of Protective and Regulatory

her possession. The father brought a SAPCR Services in the person’s home for at least 12

action and the neighbor filed a counterpetition. months ending not more than 90 days preceding

Upon review, the appellate court confirmed the the date of the filing of the petition. Tex. Fam.

trial court and appointed the father and the Code § 102.003(a)(12). In computing the time

neighbor joint managing conservators of the child necessary for standing under subsection (a)(12),

and granted the neighbor the exclusive right to “the court may not require that the time be

designate the residence of the children. It is continuous and uninterrupted but shall consider

interesting to note that the court found that besides the child’s principal residence during the relevant

the neighbor having had substantial past contact time preceding the date of commencement of the

with the children, that appointing the father as a suit.” Tex. Fam. Code § 102.003(b). The elements

sole managing conservator would significantly of residency for this section are: (1) a fixed place

impair the children’s health and emotional of abode within the possession of the party; (2)

development. occupied or intended to be occupied consistently

over a substantial period of time; (3) which is

F. Foster parents

permanent rather than temporary. 52

Foster parents may obtain standing through

Notwithstanding the time requirements of

Texas Family Code §102.003(a)(12), §102.003(c)

Subsection (a)(12), a person who is the foster

or §102.004(b). An original suit may be filed as

parent of a child may file a suit to adopt a child for

follows:

whom the person is providing foster care at any

1. Family Code 102.003(a)(12) time after the person has been approved to adopt

A person who is the foster parent of a child the child. The standing to file suit under this

placed by the Department of Family and subsection applies only to the adoption of a child

Protective Services in the person's home for at who is eligible to be adopted. Tex. Fam. Code §

least 12 months ending not more than 90 days 102.003(c). The filing of a petition to terminate

preceding the date of the filing of the petition. parental rights by foster parents who have

2. Family Code 102.004(b) standing under Section 102.003(a)(12) grants a

An original suit requesting possessory trial court jurisdiction to terminate those rights

conservatorship may not be filed by a grandparent even after the trial court loses jurisdiction over the

or other person. However, the court may grant a petition to terminate filed by the Texas

grandparent or other person deemed by the court Department of Family and Protective Services. 53

to have had substantial past contact with the child However, if the foster parents’ plea in intervention

leave to intervene in a pending suit filed by a is contingent on upon, and not independent of, the

person authorized to do so under this subchapter if allegations of the Texas Department of Family and

there is satisfactory proof to the court that Protective Services, and the foster parents have no

appointment of a parent as a sole managing pending claims for affirmative relief, the foster

conservator or both parents as joint managing parents lose standing if the Texas Department of

conservators would significantly impair the child's Family and Protective Services nonsuits its

physical health or emotional development. claims. 54

3. Family Code 102.003(c)

Notwithstanding the time requirements of 52

Doncer v. Dickerson, 81 S.W.3d 349, 356 (Tex.App.--El

Subsection (a)(12), a person who is the foster Paso 2002, no pet.).

53

parent of a child may file a suit to adopt a child for In re C.V.G., 112 S.W.3d 180, 184 (Tex. App.—Houston

whom the person is providing foster care at any [1st Dist.] 2003, orig. proceeding).

54

In re Roxsane R., 249 S.W.3d 764, 773-74 (Tex. App.—

time after the person has been approved to adopt

Fort Worth 2008, orig. proceeding).

11

G. Prospective Adoptive Parent Standing revocation of the statement must be in writing and

must be sent by certified mail, return receipt

1. Family Code 102.003(a)(14)

requested, to the prospective adoptive parent. Tex.

An original suit may be filed at any time by a

Fam. Code §102.0035(f). On filing with the court

person who has been named as a prospective

proof of the delivery of the revocation of a

adoptive parent of a child by a pregnant woman or

statement to confer standing under Subsection (f),

the parent of the child, in a verified written

the court shall dismiss any suit affecting the

statement to confer standing executed under

parent-child relationship filed by the prospective

Section 102.0035, regardless of whether the child

adoptive parent named in the statement. Tex. Fam.

has been born. Tex. Fam. Code §102.003(a)(14).

Code § 102.0035(g).

2. Family Code 102.0035

A pregnant woman or a parent of a child may 3. In the Interest of S.S.G.

In the Interest of S.S.G. considered issues

execute a statement to confer standing to a

involving prospective adoptive parents that took

prospective adoptive parent as provided by

possession of the child at issue soon after its

Section 102.0035 to assert standing under Section

birth. 56 The prospective adoptive parents filed a

102.003(a)(14). A statement to confer standing

SAPCR seeking termination of the parent-child

under Section 102.0035 may not be executed in a

relationship and adoption of the child. Id. The

suit brought by a governmental entity under

trial court terminated the parental rights and

Chapter 262 or 263. Tex. Fam. Code §

appointed the prospective adoptive parents as

102.0035(a). The statement may not be used for

managing conservators. The Court of Appeals

any purpose other than to confer standing in a

reversed and denied relief to the appellants and

proceeding for adoption or to terminate the parent-

appellants filed a petition for review with the

child relationship. Tex. Fam. Code §102.0035(c).

Texas Supreme Court which was denied.

A statement to confer standing is not required

Appellants, the prospective adoptive parents, had

in a suit brought by a person who has standing to

possession of the child during the entire period.

file a suit affecting the parent-child relationship

Following the denial by the Supreme Court,

under Sections 102.003(a)(1)-(13) or any other

appellants filed a new SAPCR under

law under which the person has standing to file a

§102.003(a)(9), based on the duration of time the

suit. Tex. Fam. Code § 102.0035(e). For a

child had resided with the parties, thereby

statement to confer standing to be effective, a

affording appellants standing.

parent-child relationship must exist and may be as

The trial court in the second SAPCR pleading

follows. A father-child relationship is established

noted an exception to §102.003(a)(9), which

between a man and a child by an unrebutted

provides that “if possession is maintained in

presumption of paternity; an unrevoked and

violation of a valid court order, that possession

unchallenged acknowledgment of paternity; an

does not confer standing to bring suit affecting the

adjudication of paternity; the man’s adoption of

parent-child relationship.” Id. The Court held that

the child; or his consent to his wife’s use of

the prospective adoptive parent’s continued

assisted reproduction. Tex. Fam. Code §

possession was not in violation of a court order

160.201(b). An alleged father is a man who

due to the fact that neither the trial court nor the

alleges himself to be, or is alleged to be, the

Court of Appeals entered an order requiring

genetic father or a possible genetic father of the

appellants to return the child to the biological

child, but whose paternity has not been

parents, and therefore, because they had actual

determined. Tex. Fam. Code § 101.0015(a). A

care, custody and possession of the child for six

statement to confer standing executed by a man as

months not ending more than ninety days prior to

an alleged father does not confer standing. 55 A

the filing of the petition, appellants had standing

person who executes a statement to confer

to file the second suit. Id.

standing may revoke the statement at any time

before the person executes an affidavit for

voluntary relinquishment of parental rights. The

55 56

In re Mata, 212 S.W.3d 597, 608 (Tex. App.—Austin 208 S.W.3d 1, 2006 Tex.App. LEXIS 1544

2006, orig. proceeding). (Tex.App.Amarillo 2006).

12

H. Same Sex couples the child’s school record without T.S.’s

agreement. The following month K.V. filed suit

1. Family Code 102.003(a)(9)

seeking to be appointed joint managing

Same sex partners most frequently utilize

conservator or the child or in the alternative to

§102.003(a)(9) to attempt to acquire standing.

adopt the child. Since K.V. was not the biological

The section states that to establish “actual care,

parent of the child, she asserted standing to sue for

control, and possession” as required by section

conservatorship under section 102.003(a)(9) as a

102.003(a)(9), the party must demonstrate (i) more

person who had “actual care, control, and

than temporary or occasional possession, though it

possession of the child for at least six months

need not by exclusive, and (ii) more than the

ending not more than 90 days preceding the date

control “implicit in having care and possession of

of the filing of the petition.” Tex. Fam. Code Ann

the child.” 57 To establish the six month

§102.003(a)(9).

requirement of “actual care, control, and

K.V. appealed the trial court’s decision

possession of the child” as required by section

that she lacked standing to sue for

102.003(a)(9), some cases say that the party must

conservatorship, maintaining that she satisfied the

demonstrate the child “principally resided” with

standing requirement by virtue of her weekly

him, though the residency of the child with the

overnight possessions of the child and possessions

party need not be continuous and uninterrupted.58

on “some holidays”, alternate weekends, and

However, visitation in accordance with the

alternate Sundays. Noting that the court in Doncer

Standard Possession Order found in section

compared the term “principal residence” as used

153.312 of the family code may satisfy the

in the determination of the six month possession

standing requirement. 59 Whether a party satisfies

requirement in §102.003(a)(9) with the term

the standing requirement under section

“primary residence” as defined in a joint

102.003(a)(9) is necessarily fact specific and

managing conservatorship in connection with

determined on a case by case basis. 60 Several

whom the child lives once conservators have been

cases, as discussed below, have considered

appointed, the Appellate Court concluded the term

standing issues for same sex couples.

“principal residence” means a “fixed place of

a) In re M.K.S.-V.

abode, occupied consistently over a substantial

In re M.K.S.-V., involved dismissal of a

period of time, which is permanent rather than

partner’s (K.V.) suit for conservatorship or

temporary.” K. V. argued that her home was a

adoption of a child born in 2004 to the ex-partner

principal residence of the child because it was “a

(T.S.) who became pregnant with the child

fixed place of abode” that the child occupied

through artificial insemination by a sperm donor. 61

consistently and in a permanent fashion, in

The partners co-parented the child for over a year

accordance with the possession agreement. The

when the relationship ended and T.S. moved out

Appellate Court held that an intent that the child

with the child. The partners set up an agreed

occupy K.V.’s home consistently over a

written schedule for the child to visit K.V.

substantial period of time alone established only

overnight once a week, alternate Sunday

the six month requirement of section

afternoons, alternate weekends beginning on

102.003(a)(9), and to establish standing, K.V. also

Friday afternoons during the school year and

had to establish that she exercised more than the

Thursday afternoons in the summer and certain

control implicit in having care and possession of

holidays. The schedule began in August of 2005

the child.

and continued until April of 2007 when T.S.

The Appellate Court placed emphasis on

discontinued the visits because K.V. had accessed

the fact that even though the “possession

57 agreement” shared characteristics of a standard

See K.K.C., 292 S.W.3d 788 (Tex.App. -Beaumont 2009,

orig. proceeding); In re M.J.G., 248 S.W.3d 753, 758-59

possession order, nothing in the record showed

(Tex.App.-Fort Worth 2008, no pet.). that it was accompanied by the rights a parent

58

Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.- El conservator enjoys “at all times,” or that T.S.

Paso 2002, no pet.); See Tex. Fam. Code Ann. §102.003(b). relinquished or shared any of her rights as a

59

See Doncer, 81 S.W.3d at 362. parent. The Appellate Court thus rejected K.V.’s

60

In re M.P.B., 257 S.W.3d 804, 809 (Tex.App. - Dallas

2008, no pet.).

argument that she established standing to sue for

61

301 S.W.3d 460 (Tex.App.—Dallas 2009).

13

conservatorship by virtue of her possession Id. Haley and Smith separated in February 2008,

agreement. and Smith filed a motion to vacate the agreed

The Dallas Appellate Court, on December order, and Haley filed a petition to modify the

1, 2009, withdrew the August opinion, vacated the order. Id. The trial court denied Smith’s motion to

judgment of that date, and issued a new opinion vacate and she filed for mandamus arguing that

finding that the trial court erred in determining the 2002 agreed order naming Haley as joint

that K.V. did not meet the standing requirement. 62 managing conservator was void because Haley

In finding that K.V. did establish the six month lacked standing. Id. The Appellate Court

period of actual care, custody, and control conditionally granted Smith’s petition for writ of

requisite to establish her standing to file an mandamus and directed the trial court to vacate its

original SAPCR, the Dallas Court of Appeals orders. In doing so, the appellate court noted that

focused on the fact that the child had her own at the temporary hearing in 2008, Haley

room in K.V.’s house where the child kept toys, acknowledged that she did not have standing at the

movies, a television and an aquarium. Id. K.V. had time the original petition was filed pursuant to

modified her house by building a wrap around section 102.003(a)(9), in that she was not “a

deck with gates to create a safe environment for person, other than a foster parent, who has had

the child, would pick up the child from school on actual care, control, and possession of the child for

occasions when the child was sick and then at least six months ending not more than 90 days

purchase and administer medication. Id. K.V. was preceding the date of the filing of the original

listed as a parent on the child’s school records, petition.” Id. at 466. When Haley and Smith filed

attended school activities and the teachers were the joint petition, the twins were four months old

aware that K.V. picked up the child during K.V.’s so the six month requirement had not been met. Id.

periods of possession. Id. Witnesses testified that The Appellate Court also rejected Haley’s

T.S. had referred to K.V. as the child’s mother and argument that because she and Smith had a written

treated K.V. as a parent. Id. K.V. established a agreement concerning conservatorship

college fund for the child and after the relationship incorporated into the agreed order, that Smith’s

with T.S. ended, the couple still attended church standing was enough to confer jurisdiction. Haley

with the child as a family unit. Id. The Appellate relied on section 153.007(b) of the Texas Family

Court stated that the record did not suggest that Code, providing that the court “shall render an

the pattern of possession and care giving was order in accordance with the parenting plan.”

intended to be a temporary arrangement. Id. “To Regardless, the Appellate Court stated that section

the contrary, the possession agreement and the 153.007(b) presupposes standing, and Haley had

parties’ actions evidenced intent that the child not established standing under the Family Code’s

occupy K.V.’s home consistently over a general standing statute or under a more specific

substantial period of time.” Id. Family Code statute. Id. at 466.

b) In re Smith Haley then filed an original petition in

In In re Smith, Charlena Smith gave birth 2008 seeking to be named as sole managing

to twins conceived by artificial insemination from conservator under Chapter 153 of the Texas

an anonymous donor, and when the twins were Family Code arguing standing to do so pursuant to

four months old, Smith and her same sex partner, §102.003(a)(9). 64 The trial court dismissed the

Sheila Haley, filed a joint SAPCR petition.63 In petition for lack of standing and made written

October 2002, when the twins were five months findings of fact and conclusions of law as set forth

old, the trial court signed an Agreed SAPCR as follows:

Order appointing Smith and Haley as joint “1. There is no evidence that,

managing conservators and gave them equal during the relevant time period, the parent,

possession of the children at all times and stating Ms. Smith, totally abdicated her parental

“that no stated provisions for possession and responsibilities over the children to the non

access are necessary in light of the fact that the parent, Ms. Haley.

parties cohabited in the same primary residence.”

62 64

In re M.K.S.-V., 05-08-00568-CV (Tex.App.-Dallas 2009). In the Interest of C.T.H.S. and C.R.H.S., 311 S.W.3d 204

63

262 S.W.3d 463 (Tex.App.-Beaumont 2008) (Tex.Civ.App.—Beaumont 2010).

14

2. There is no evidence that, during context with the responsibilities and liberty

the relevant time period, the parent Ms. interests of the parent. Id. In giving effect to the

Smith did not exercise some care for, some words “actual care,” the appellate court considered

control over or some supervision over the §102.003(a)(11) which provides standing for a

children at the same time that the non person with whom the child has resided for six

parent Ms. Haley exercised some care for, months if the parent is deceased at the time suit is

some control over and some supervision filed. Id. The appellate court theorized that a

over the children. person living with a parent and a child may care

3. There is no evidence that, during for the child over a period of time but would not

the relevant time period, the non parent acquire standing by providing the care normally

Ms. Haley exercised exclusive care for, associated with residing in the same household. Id.

control over and supervision over the at 209.

children to the exclusion of the parent Ms. The appellate court compared the case to

Smith. In re M.J.G., 65 where the Fort Worth court of

4. A parent must totally abdicate appeals denied standing to grandparents holding

their parental responsibilities to another that although the children lived with the

person during the relevant time period grandparents since birth and the grandparents

before that other person can acquire performed day to day care taking duties, the

standing to file an original SAPCR with parents also lived with the grandparents and had

respect to that parent’s child. not “abdicated their parental duties and

5. A parent’s allowing of a non responsibilities to the grandparents.” Id. at 209,

parent to have some care for, some control citing In re M.J.G.

over and some supervision over the Haley argued the M.J.G. decision

parent’s child during the relevant time incorrectly construed §102.003(a)(9) and that a

period is insufficient for the non parent to parent often lives with others and that the best

acquire standing to file an original SAPCR interest of the children should be the primary

with respect to that child. consideration. Id. The appellate court disagreed

6. If a parent, to any extent with Haley and stated that “standing does not turn

whatsoever, retains or exercises any care on whether a trial court agrees or disagrees with a

for, any control over or any supervision parent’s decision concerning the best interest of

over their child during the relevant time her children, or a parent’s decision regarding who

period, then a non-parent cannot as a may associate with her children.” Id. at 209.

matter of law acquire standing to file an Further, that the inquiry of the court for a non-

original SAPCR with respect to that child. parent claiming standing pursuant to the “actual

7. During the relevant time period, care” requirement of §102.003(a)(9) focuses on

a non-parent must exercise exclusive care “whether the parent is adequately caring for her

for, control over and supervision over a children.” Id., citing Tex. Fam. Code

child (not necessarily continuous for the §102.003(a)(9). The appellate court concluded that

entire time period, but during the relevant although Haley lived with the children, Smith also

time period) to the exclusion of the child’s lived in the home with the children and had not

parent in order to acquire standing to file “abdicated her parental duties and responsibilities”

an original SAPCR with respect to that nor did the record show that Smith failed to

child.” Id. adequately care for her children. Id. at 209-210.

Haley appealed the trial court’s dismissal As such, the court affirmed the trial court’s ruling

of her petition for lack of standing. Id. On appeal, that Haley failed to meet her burden and did not

the court in considering if she had standing have standing to file suit. Id.

focused on the specific statutory words “actual

care, control, and possession” in §102.003(a)(9) of

the Texas Family Code and stated that they would

give each “word effect if it is reasonable and

possible to do so.” Id at 208. The appellate court

stated that “actual care” must be interpreted in 65

248 S.W.3d 753 (Tex.App.-Fort Worth 2008, no pet.)

15

2. Same Sex Adoption order shall terminate all rights of the parent

The Texas Family Code does not preclude without further termination proceedings.

same sex adoption. Section 162.001 sets forth

who may adopt and who may be adopted: Additionally, §102.0035 allows a pregnant

woman or any parent of a child to sign a statement

162.001: (a) Subject to the requirements for to confer standing to a prospective adoptive parent

standing to sue in Chapter 102, an adult and allow that individual to bring a suit for

may petition to adopt a child who may be adoption or for termination and adoption under

adopted. §102.003(a)(14). Several cases have considered

the issue of standing in same sex adoptions.

(b) A child residing in this state may be In Goodson v. Castellanos, 66 Goodson

adopted if: traveled to Kazakstan to adopt a 3-year old child.

After returning, she and her same-sex partner,

(1) the parent-child relationship as to each Castellanos, adopted the child. A year later, when

living parent of the child has been the parents separated, Castellanos filed a SAPCR

terminated or a suit for termination is and after trial, the court appointed Castellanos as

joined with the suit for adoption; sole managing conservator. On appeal, Goodson

alleged that the Texas adoption was void because

(2) the parent whose rights have not been the court lacked subject matter jurisdiction over an

terminated is presently the spouse of the adoption of a child by two members of the same

petitioner and the proceeding is for a sex. She used various definitions of “parent” in

stepparent adoption; Texas Family Code § 101.024 and 101.025 and

also cited the Texas Health and Safety Code §

(3) the child is at least two years old, the 192.008(a) that says amended birth certificates

parent-child relationship has been “must be in the names of the adoptive parents, one

terminated with respect to one parent, the of whom must be a female . . . and the other of

person seeking the adoption has been a whom must be a male.” The court rejected these

managing conservator or has had actual arguments, saying that the court issuing the

care, possession, and control of the child adoption order is a court of general jurisdiction

for a period of six months preceding the that “may hear and determine any cause that is

adoption or is the child's former stepparent, cognizable by courts of law or equity and may

and the nonterminated parent consents to grant any relief that could be granted by either

the adoption; or courts of law or equity.” Id. at 747. The court also

pointed out that the Family Code “specifically

(4) the child is at least two years old, the authorizes district courts to issue adoption orders.

parent-child relationship has been Id. at 748. The court held that Goodson could not

terminated with respect to one parent, and collaterally attack the adoption decree. Id. at 749.

the person seeking the adoption is the Goodson also argued that the coparent

child's former stepparent and has been a adoption “violates the public interest of the state

managing conservator or has had actual of Texas that a child have at most one parent of

care, possession, and control of the child each sex.” Id at 750. The court again disagreed.

for a period of one year preceding the The Court held that if a parent wishes to maintain

adoption. that zone of privacy she cannot invite a third party

to function as a parent to her child and cannot cede

(c) If an affidavit of relinquishment of over to that party parental authority the exercise of

parental rights contains a consent for the which may create a profound bond with the child.

Department of Protective and Regulatory Id. at 752.

Services or a licensed child-placing agency In Hobbs v. Van Stavern, 67 Hobbs was the

to place the child for adoption and appoints child’s biological mother who conceived the child

the department or agency managing

conservator of the child, further consent by 66

214 S.W.3d 741 (Tex.App.—Austin 2007).

the parent is not required and the adoption 67

249 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2006).

16

through donor insemination and Van Stavern children. 71 If a parent has engaged in estate

adopted the child when the child was 3 years old. planning, and has designated a guardian for a

A year and a half later, the parents separated and child, then that person, upon being appointed

Van Stavern moved out of the home and filed a guardian, would have standing to file suit.

SAPCR. When Hobbs attacked the validity of the

J. Standing to Adjudicate Parentage

adoption, the court responded that the attack was Unless a voluntary acknowledgment of

untimely, and held that the validity of an adoption paternity has been executed by another man, a

order is not subject to attack after six months after prospective father has standing to seek

the date the order was signed. Id. Hobbs also adjudication of paternity.

claimed that appointing Van Stavern as a joint 102.003(a)(8): a man alleging himself to be

managing conservator of the child violated public the father of a child filing in accordance

policy because it was “tantamount to a with Chapter 160, subject to the limitations

proclamation validating same-sex relationships.” of that chapter, but not otherwise.

Id. Noting that Van Stavern had “little substantive 160.602(a): Subject to Subchapter D

argument and no citation to authority,” the court [voluntary acknowledgment of paternity]

found that, because the Code permitted Van and [the time limits in] Sections 160.607

Stavern to seek custody, it was “constrained to and 160.609 and except as provided by

follow the provisions of the Family Code as Subsection (b), a proceeding to adjudicate

enacted” and overruled the public policy parentage may be maintained by:

argument. Id. at 4-5. (1) the child;

I. Designated Guardian: Connecting the (2) the mother of the child;

Probate Code to the Family Code (3) a man whose paternity of the child is to

An attorney practicing primarily family law be adjudicated;

may not have a working familiarity with the (4) the support enforcement agency or

Probate Code, nonetheless, it can provide standing another government agency authorized

in certain instances. Under Tex. Fam. Code by other law;

102.003(a)(4), a guardian of the person or of the (5) an authorized adoption agency or

estate of the child has standing to file an original licensed child-placing agency;

suit. Such a person also has standing to file a (6) a representative authorized by law to

modification suit, pursuant to Tex. Fam. Code § act for an individual who would

156.002(b). otherwise be entitled to maintain a

In the Probate Code, the term “guardian” is proceeding but who is deceased, is

defined to mean a person who is appointed incapacitated, or is a minor;

guardian under Section 693 of the Probate Code, (7) a person related within the second

or a temporary or successor guardian. 68 The term degree by consanguinity to the mother

“guardian” in Section 102.003(a)(4) of the Family of the child, if the mother is deceased;

Code must be construed in accordance with the or

Probate Code’s definition of “guardian.” 69 (8) a person who is an intended parent.

Section 676 of the Probate Code allows the (b) After the date a child having no presumed,

surviving parent of a minor, by will or written acknowledged, or adjudicated father

declaration, to appoint any eligible person to be becomes an adult, a proceeding to

guardian of the person of the parent's minor adjudicate the parentage of the adult child

children after the death or incapacity of the may only be maintained by the adult child.

parent. 70 After the parent’s death or a finding of Prior to 2007, there was debate over whether a

incapacity, the court shall appoint the person sperm donor had standing to adjudicate parentage.

designated in the will or declaration to serve as In re Sullivan 72 held that where a mother and a

guardian of the person of the parent's minor donor had executed a co-parenting agreement, he

68

Tex. Prob. Code § 601(11).

69 71

In re A.D.P., 281 S.W.3d 541, 549 (Tex.App.—El Paso Tex. Prob. Code § 676(e).

72

2008, no pet.). In re Sullivan, 157 S.W.3d 911 (Tex.App.--Houston [14th

70

Tex. Prob. Code § 676(d). Dist.] 2005, orig. proceeding [mand. denied]).

17

had standing to bring a suit; while In re H.C.S.73 allegations were made fraudulently to confer

held that a donor did not have standing. In 2007, jurisdiction. 81 When reviewing a trial court's order

Tex. Fam. Code § 160.7031 was revised to clarify on a plea to the jurisdiction, an appellate court

the issue. may look to evidence outside of the pleadings:

Another interesting case held that, where a “[T]he issues raised by a dilatory plea are often

man seeking to be adjudicated the father has such that they cannot be resolved without hearing

standing as of the filing of the case, the court does evidence. And because a court must not act

not lose subject matter jurisdiction over the without determining that it has subject-matter

parentage action when the DNA test results jurisdiction to do so, it should hear evidence as

determine that he is not the father. 74 necessary to determine the issue before proceeding

with the case. But the proper function of a dilatory

IV. Challenging Standing plea does not authorize an inquiry so far into the

The Sullivan 75 case contains a discussion on substance of the claims presented that plaintiffs

the proper procedure for challenging standing: are required to put on their case simply to

Standing is a prerequisite to subject-matter establish jurisdiction….The court should, of

jurisdiction, which is essential to a court's power course, confine itself to the evidence relevant to

to decide a case. 76 A party may challenge the the jurisdictional issue.” 82

absence of subject-matter jurisdiction by a plea to

the jurisdiction and by other procedural vehicles.77

A plea to the jurisdiction is a dilatory plea, the

purpose of which is to defeat the alleged claims,

without regard to whether they have merit. 78 The

purpose of a dilatory plea is not to force a plaintiff

to preview its case on the merits, but to establish a

reason why the merits of its case should never be

reached. 79

Meeting the burden for standing is different

than meeting the burden to prevail on the case.

The Texas Supreme Court has emphasized that a

court should not decide standing issues based on

its views of the merits: “In deciding a plea to the

jurisdiction, a court may not weigh the claims'

merits but must consider only the plaintiffs'

pleadings and the evidence pertinent to the

jurisdictional inquiry. When we consider a trial

court's order on a plea to the jurisdiction, we

construe the pleadings in the plaintiff's favor and

look to the pleader's intent.” 80 A trial court accepts

the factual allegations in the petition as true,

unless the defendant pleads and proves the

73

In re H.C.S., 219 S.W.3d 33 (Tex.App.-San Antonio 2006,

no pet.).

74

In re K.I.A., 205 S.W.3d 14 (Tex.App.—Eastland 2006,

no pet.).

75

In re Sullivan, 157 S.W.3d 911, 914-15 (Tex.App.--

Houston [14th Dist.] 2005, orig. proceeding, [mand.

denied]).

76

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54

(Tex. 2000).

77

Id. at 554.

78 81

Id. Id. at 554; TAC Realty, Inc. v. City of Bryan, 126 S.W.3d

79

Id. 558, 561 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

80 82

Id. at 554-55. Id. at 554-55.

18

V. Appendix A, Texas Family Code Standing Government Code, if the child's parents are

Provisions deceased at the time of the filing of the

petition; or

(14) a person who has been named as a

A. Chapter 102

prospective adoptive parent of a child by a

pregnant woman or the parent of the child,

Tex. Fam. Code § 102.003.

in a verified written statement to confer

GENERAL STANDING TO FILE SUIT.

standing executed under Section 102.0035,

(a) An original suit may be filed at any time by:

regardless of whether the child has been

(1) a parent of the child;

born.

(2) the child through a representative

(b) In computing the time necessary for standing

authorized by the court;

under Subsections (a)(9), (11), and (12), the

(3) a custodian or person having the right of

court may not require that the time be

visitation with or access to the child

continuous and uninterrupted but shall

appointed by an order of a court of another

consider the child's principal residence during

state or country;

the relevant time preceding the date of

(4) a guardian of the person or of the estate of

commencement of the suit.

the child;

(c) Notwithstanding the time requirements of

(5) a governmental entity;

Subsection (a)(12), a person who is the foster

(6) an authorized agency;

parent of a child may file a suit to adopt a

(7) a licensed child placing agency;

child for whom the person is providing foster

(8) a man alleging himself to be the father of a

care at any time after the person has been

child filing in accordance with Chapter

approved to adopt the child. The standing to

160, subject to the limitations of that

file suit under this subsection applies only to

chapter, but not otherwise;

the adoption of a child who is eligible to be

(9) a person, other than a foster parent, who

adopted.

has had actual care, control, and possession

of the child for at least six months ending

not more than 90 days preceding the date Tex. Fam. Code § 102.0035.

of the filing of the petition; STATEMENT TO CONFER STANDING.

(a) A pregnant woman or a parent of a child may

(10) a person designated as the managing

execute a statement to confer standing to a

conservator in a revoked or unrevoked

prospective adoptive parent as provided by this

affidavit of relinquishment under Chapter

section to assert standing under Section

161 or to whom consent to adoption has

102.003(a)(14). A statement to confer standing

been given in writing under Chapter 162;

under this section may not be executed in a

(11) a person with whom the child and the

suit brought by a governmental entity under

child's guardian, managing conservator, or

Chapter 262 or 263.

parent have resided for at least six months

(b) A statement to confer standing must contain:

ending not more than 90 days preceding

(1) the signature, name, age, and address of the

the date of the filing of the petition if the

person named as a prospective adoptive

child's guardian, managing conservator, or

parent;

parent is deceased at the time of the filing

(2) the signature, name, age, and address of the

of the petition;

pregnant woman or of the parent of the

(12) a person who is the foster parent of a

child who is consenting to the filing of a

child placed by the Department of Family

petition for adoption or to terminate the

and Protective Services in the person's

parent-child relationship as described by

home for at least 12 months ending not

Subsection (a);

more than 90 days preceding the date of

(3) the birth date of the child or the anticipated

the filing of the petition;

birth date if the child has not been born;

(13) a person who is a relative of the child

and

within the third degree by consanguinity,

(4) the name of the county in which the suit

as determined by Chapter 573,

will be filed.

19

(c) The statement to confer standing must be deemed by the court to have had substantial

attached to the petition in a suit affecting the past contact with the child leave to intervene in

parent-child relationship. The statement may a pending suit filed by a person authorized to

not be used for any purpose other than to do so under this subchapter if there is

confer standing in a proceeding for adoption or satisfactory proof to the court that appointment

to terminate the parent-child relationship. of a parent as a sole managing conservator or

(d) A statement to confer standing may be signed both parents as joint managing conservators

at any time during the pregnancy of the mother would significantly impair the child's physical

of the unborn child whose parental rights are health or emotional development.

to be terminated. (c) Possession of or access to a child by a

(e) A statement to confer standing is not required grandparent is governed by the standards

in a suit brought by a person who has standing established by Chapter 153.

to file a suit affecting the parent-child

relationship under Sections 102.003(a)(1)-(13) Tex. Fam. Code § 102.0045.

or any other law under which the person has STANDING FOR SIBLING.

standing to file a suit. (a) The sibling of a child may file an original suit

(f) A person who executes a statement to confer requesting access to the child as provided by

standing may revoke the statement at any time Section 153.551 if the sibling is at least 18

before the person executes an affidavit for years of age.

voluntary relinquishment of parental rights. (b) Access to a child by a sibling of the child is

The revocation of the statement must be in governed by the standards established by

writing and must be sent by certified mail, Section 153.551.

return receipt requested, to the prospective

adoptive parent. Tex. Fam. Code § 102.005.

(g) On filing with the court proof of the delivery STANDING TO REQUEST TERMINATION

of the revocation of a statement to confer AND ADOPTION.

standing under Subsection (f), the court shall An original suit requesting only an adoption or for

dismiss any suit affecting the parent-child termination of the parent-child relationship joined

relationship filed by the prospective adoptive with a petition for adoption may be filed by:

parent named in the statement. (1) a stepparent of the child;

(2) an adult who, as the result of a placement

Tex. Fam. Code § 102.004. for adoption, has had actual possession and

STANDING FOR GRANDPARENT OR control of the child at any time during the

OTHER PERSON. 30-day period preceding the filing of the

(a) In addition to the general standing to file suit petition;

provided by Section 102.003, a grandparent, or (3) an adult who has had actual possession and

another relative of the child related within the control of the child for not less than two

third degree by consanguinity, may file an months during the three-month period

original suit requesting managing preceding the filing of the petition;

conservatorship if there is satisfactory proof to (4) an adult who has adopted, or is the foster

the court that: parent of and has petitioned to adopt, a

(1) the order requested is necessary because sibling of the child; or

the child's present circumstances would (5) another adult whom the court determines to

significantly impair the child's physical have had

This text is long and has been trimmed here. Open the source document for the complete record.