Opinion
No. 05-17-00723-CV
12-20-2017
IN THE INTEREST OF E.C., A CHILD
On Appeal from the 305th Judicial District Court Dallas County, Texas
Trial Court Cause No. 16-00152-X-305
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Stoddart
Opinion by Chief Justice Wright
Appellants (Foster Parents) appeal the trial court's order dismissing their petition in intervention in a suit involving the parent-child relationship. In two issues, Foster Parents generally contend the trial court abused its discretion in dismissing their intervention. For the following reasons, we affirm the trial court's order.
On February 15, 2016, after Mother's arrest for possession of drugs, the Texas Department of Family and Protective Services (the Department) took possession of her three-year-old son, E.C. The following day, the Department placed E.C. with Foster Parents and filed suit for E.C.'s protection, for conservatorship, and for termination of Mother's rights. The Department also sought to terminate the parental rights of E.C.'s biological father, who it alleged was unknown. The trial court subsequently appointed the Department as E.C.'s temporary managing conservator and E.C.'s placement with Foster Parents continued.
In late 2016, the Department notified Foster Parents it intended to place E.C. with family members, "the S's", who lived in Florida. Foster Parents then sought to intervene in the suit affecting parent child relationship. At that time, they asserted they had standing to intervene pursuant to 102.004(b) of the Texas Family Code, which governs the circumstances under which a trial court may grant leave to a grandparent or "other person" to intervene in a pending suit affecting the parent-child relationship. See TEX. FAM. CODE ANN. § 102.004(b) (West 2017).
On February 17, 2017, Foster Parents amended their petition and abandoned their claim of standing under section 102.004(b) and asserted they had standing to intervene because they had been E.C.'s foster parents for one year and thus had general standing to bring an original suit affecting the parent-child relationship. See id. at. § 102.003(a)(12). In their amended intervention, Foster Parents also requested the trial court to terminate Mother's parental rights, but they did not seek to terminate the rights of E.C.'s biological father.
At that time, the Department's suit was set for mandatory dismissal on February 20, 2017. See TEX. FAM. CODE ANN. § 263.401 (West 2014) (unless the court has commenced the trial on the merits or granted an extension, trial court's jurisdiction over a suit affecting parent-child terminates on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator). However, on the original dismissal date, the trial court granted the Department's motion to extend and set the case for a jury trial on June 6, 2017. See id at § 263.401(b).
By the time of trial, the Department and Mother agreed the S's would be appointed E.C.'s permanent managing conservators and that Mother would be appointed as possessory conservator. Thus, the Department was no longer pursuing its suit for termination. On the morning of trial, Mother asserted Foster Parents could not "move forward" with their intervention because they had failed to request that the rights of E.C.'s biological father be terminated. Foster Parents responded they had intended to "piggy back" on the Department's pleadings against E.C.'s unknown biological father and, if the Department was no longer requesting that relief, Foster Parents would seek to terminate the rights of the biological father at a later date. The trial court informed Foster Parents they could not litigate a suit involving the parent-child relationship by "piecemeal." Foster Parents then requested the trial court to grant them leave to amend their pleadings to request that E.C.'s unknown biological father's parental rights be terminated. The trial court denied their request and dismissed their intervention. As a result, Foster Parents did not participate at the trial that followed.
At the conclusion of the trial, the trial court appointed the S's as E.C.'s permanent joint managing conservators and Mother as possessory conservator. The trial court's Final Order also included a written order dismissing Foster Parents from the suit. This appeal followed.
In their first issue, Foster Parents assert the trial court abused its discretion by dismissing their intervention because the trial court should not have required them to terminate the parental rights of E.C.'s unknown biological father at the same time as proceeding with the termination of Mother's parental rights for the adoption of E.C. In their second issue, Foster Parents assert that, even if their pleadings were defective, the trial court abused its discretion in dismissing their intervention because (1) Mother failed to specially except to their pleadings prior to trial; (2) they were not given an opportunity to amend; and (3) Mother lacked standing to complain of any deficiencies related to E.C.'s biological father.
We begin by noting that Foster Parents challenge the trial court's order as though the trial court dismissed an original suit affecting the parent-child relationship based on a pleading deficiency. However, Foster Parents did not bring an original suit; they intervened in the Department's pending suit. By dismissing the intervention, the trial court effectively struck the intervention and dismissed the Foster Parents as parties to the Department's suit. See Gregory B. Baten Tr. v. Branch Banking & Tr. Co., 05-14-00133-CV, 2015 WL 543794, at *3 (Tex. App.—Dallas Feb. 10, 2015, no pet.) (an order striking an intervention completely disposes of the intervenors' interest in the suit and dismisses the intervenor from the suit); cf. Seale v. Tex. Dep't of Family & Protective Servs., No. 01-10-00440-CV, 2011 WL 765 886, at *3 (Tex. App.—Houston [1st. Dist.] Mar. 3, 2011, no pet.) (objection to intervenor's pleadings was in substance a motion to strike). Thus, Foster Parents must show the trial court abused its discretion in striking their petition in intervention. See Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex.1982) ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."). Before reaching that issue, we first consider the threshold issue of whether Foster Parents had standing to intervene in the Department's suit. See In re M.P.B., 257 S.W.3d 804, 807 (Tex. App.—Dallas 2008, no pet.).
Applicable Law
Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. In re M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied). Thus, it may be raised for the first time on appeal by the parties or by the court. Texas Ass's of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Whether a party has standing to seek relief in a suit affecting the parent-child relationship is governed by the Texas Family Code. In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas 2012, pet. denied). A party seeking relief in a suit affecting the parent-child relationship must allege and establish standing within the parameters of the language used in the relevant statute. In re I.C.G., No. 05-14-01629-CV, 2015 WL 3454278, at *2-3 (Tex. App.—Dallas June 1, 2015, no pet.). Whether a party has standing is a question of law which we review de novo. Id.
The family code identifies the persons who possess general standing to file an original suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 102.003(a) (West 2014). Under section 102.003(a)(12), "a person who is the foster parent of a child placed by the Department [] in the person's home for at least 12 months . . ." has standing to file an original suit. Id. at § 102.003(12). The family code also contains an express provision that specifically governs the circumstances under which a person may intervene in a pending suit affecting the parent-child relationship. Id. at § 102.004(b); In re Salverson, 01-12-00343-CV, 2012 WL 1454549, at *2 (Tex. App.—Houston [1st Dist.] Apr. 23, 2012, no pet.). In particular, under section 102.004(b), a trial court "may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit . . . if there is satisfactory proof to the court that appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. TEX. FAM. CODE ANN. § 102.004(b); In re A.T., 2014 WL 11153028, at *9 (under section 102.004(b) the trial court acts as a gatekeeper). Effective September 1, 2017, the legislature amended section 102.004 adding subsection (b-3) which provides that a foster parent may only be granted leave to intervene under section 102.004(b) if the foster parent also would have had standing to file an original suit. See TEX. FAM. CODE ANN. § 102.004(b-3) (West Supp. 2017).
Analysis
In determining whether Foster Parents had standing to intervene, we begin with the allegations in their live petition. In re I.C.G., 2015 WL 3454278, at *2. In that petition, Foster Parents alleged they had standing to intervene pursuant to section 102.003(a) of the family code, which identifies the persons who may bring an original suit affecting the parent-child relationship. According to Foster Parents, their standing to file an original suit established their standing to intervene in the Department's lawsuit. Foster Parents relied on In re Shifflet to support their contention. In re Shifflet, 462 S.W.3d 528, 537 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
In that case, the Houston First District Court of Appeals summarily held a person establishes standing to intervene in a pending action by establishing they possessed standing to bring an original suit. Id. The Houston Court relied on the Fort Worth Court's opinion in In re S.B to support its conclusion. See In re S.B., No. 02-11-00081-CV, 2011 WL 856963, at *2 (Tex. App.—Fort Worth Mar. 11, 2011, no pet.). In that case, the Fort Worth Court concluded that a person who had standing to bring an original suit was not required to establish standing to intervene under section 102.003(b). According to the Fort Worth Court, the purpose of section 102.003(b) is to grant standing to persons who otherwise lacked standing to file an original suit. Id. at *2. Based on that conclusion, the court held its requirements apply only to persons who lack general standing. See id. The court reasoned that "[t]he legislature could not have intended that the burden to intervene in an existing suit be higher than the burden to initiate an original suit under section 102.004(a)." Id. Interestingly, the court cited its earlier opinion in In re N.L.G., 238 S.W.3d 828, 831 (Tex. App.—Fort Worth 2007, no pet.) to support its holding. However, in that case, the Fort Worth Court concluded that, when a party has standing to bring an original suit, but choses to intervene instead, the party must establish standing as an intervenor pursuant to Section 102.004(b). See In re N.L.G., 238 S.W.3d at 831.
The legislature has created a unique statutory scheme in cases involving the parent-child relationship. Given that scheme and the interests involved in suits affecting the parent child relationship, it is not surprising the legislature might create a different rule when a person seeks to intervene in a suit affecting the parent-child relationship. But according to In re Shifflet and In re S.B., the legislature could not have intended for a different rule to apply when a person seeks to intervene in a suit involving the parent child relationship than in a civil action generally. The general rule for interventions in Texas confers particularly broad rights. Compare TEX. R. CIV. P. 60 with FED. R. CIV. P. 24. Specifically, under Texas Rule of Civil Procedure 60, any person with a justiciable interest in a suit may, as a matter of right, inject their interests into pending litigation by simply filing a pleading. TEX. R. CIV. P. 60; In re Union Carbide Corp., 273 S.W.3d 152, 154-55 (Tex. 2008) (noting importance of justiciable interest requirement because it limits the individuals who may "without consultation with or permission from the original parties or the court, interject their interests into a pending suit to which the intervenors have not been invited."). In contrast, under section 102.004(b) of the family code, a person seeking to intervene in a suit affecting the parent-child relationship, must request leave and make an evidentiary showing. See TEX. FAM. CODE ANN. § 102.003(b). Whether to grant leave is then within the trial court's discretion. See id. That discretion is consistent with, if not essential to, the overall scheme of the family code and the overriding policy that the best interest of the child is always paramount.
The evidentiary showing required is the same showing necessary to overcome the presumption that a parent is to be named managing conservator. See TEX. FAM. CODE ANN. § 153.131; Mauldin v. Clements, 428 S.W.3d 247, 263 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
In a suit affecting the parent-child relationship, an intervention may offer unique benefits. In re N.L.G., 238 S.W.3d 828, 830 (Tex. App.—Fort Worth 2007, no pet.)(intervention may enhance the trial court's ability to adjudicate the cause in the best interest of the child). On the other hand, an intervention into a pending suit has the potential to cause unique disruption, particularly when the suit was brought by the Department and it was named the child's temporary managing conservator. In such cases, the Department has various duties that reflect the family code's goals to achieve permanency for a child, to reunify a child with a parent when possible, and to respect the biological connections between a child and other family members. See, e.g., TEX. FAM. CODE ANN. § 263.3025 (duty to identify permanency goals and prepare a permanency plan); id. at §§262.1095, 262.114 (duty to investigate and provide information to relatives).
Here, Foster Parents waited for one year and then claimed they were entitled to intervene in the Department's suit as a matter of right based on standing acquired while the suit was pending. They did so just days before the Department's suit was subject to automatic dismissal under section 263.401(a) and with the intent to piggy back on the Department's pleadings, while contesting its recommendations. See TEX. FAM. CODE ANN. § 263.401(b) (trial court's jurisdiction over a suit affecting the parent-child relationship filed by the Department that requests termination of the parent-child relationship is subject to automatic dismissal if trial on the merits has not commenced on the first Monday after the Department is named temporary managing conservator). The broad discretion granted to trial courts under section 102.004(b) allows trial courts to weigh the benefits of such interventions against the potential for disruption in a pending suit. We cannot agree that the legislature could not have intended it to apply in a suit affecting the parent-child relationship when the intervenor could have brought an original suit.
Foster Parents intervened in a pending suit and were thus required to establish they had standing to do so. We conclude section 102.004(b) governs that question. See In re Derzapf, 219 S.W.3d 327, 332 (Tex. 2007) (family code's specific standing requirements control over general standing provision). The Legislature's recent amendment to section 102.004 supports our conclusion. Although the amendment does not apply to this suit, it nevertheless indicates that section 102.004(b) applies to persons who seek to intervene in a pending suit even if the person may have had standing to bring an original suit. We conclude Foster Parents were required to allege and establish standing under section 102.004(b). Because they did not do so, the trial court properly dismissed their plea in intervention.
Further, even if Foster Parents had standing to intervene, the determination of whether to strike their intervention was subject to the trial court's discretion. See Mendez, 626 S.W.2d at 499. In their intervention, Foster Parents sought to terminate Mother's parental rights based on their stated desire to adopt E.C. However, they did not request the trial court to terminate the rights of E.C.'s biological father or to grant them an adoption at that time. See In re A.M., 60 S.W.3d 166, 169 (trial court allowed foster parents seeking both termination and adoption to intervene in pending suit). Rather, Foster Parents sought to intervene in the Department's suit to terminate Mother's parent-child relationship in order to remove a bar on their ability to adopt E.C. at some future time, even though the Department was no longer pursuing its suit for termination. Consequently, an order terminating Mother's parental rights would have severed the relationship between E.C. and his mother, but it would not have created any relationship between E.C. and Foster Parents. Under these circumstances, we cannot conclude the trial court abused its discretion in striking Foster Parent's intervention.
We affirm the trial court's order.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 170723F.P05
JUDGMENT
On Appeal from the 305th Judicial District Court, Dallas County, Texas
Trial Court Cause No. 16-00152-X-305.
Opinion delivered by Chief Justice Wright. Justices Francis and Stoddart participating.
In accordance with this Court's opinion of this date, the trial court's order is AFFIRMED. Judgment entered this 20th day of December, 2017.