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S.C. v. Tex. Dep't of Family & Protective Servs.

Nov 18, 2020
NO. 03-19-00965-CV (Tex. App. Nov. 18, 2020)


NO. 03-19-00965-CV


S. C., Appellant v. Texas Department of Family and Protective Services, Appellee


S.C. appeals from the trial court's order dismissing her petition to adopt Z.R., Z.A., and K.R. We will affirm the trial court's order.

For the sake of privacy, we refer to the family members by their initials. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.


S.C. is the children's maternal great-aunt. After the children's parents' rights were terminated in early November 2018, the Texas Department of Family and Protective Services was named permanent managing conservator. See Tex. Fam. Code §§ 161.206-.208. S.C. filed a petition in intervention seeking to adopt the children on February 27, 2019. The Department moved to strike, arguing that the petition was untimely, that the pleadings were deficient, and that S.C. lacked standing to file the petition. S.C. then filed a petition to modify the parent-child relationship, which the Department again sought to dismiss on the same grounds. At a hearing held in May 2019, S.C. agreed to the motion to strike her petition in intervention, and the trial court granted the Department's motion to strike her petition to modify.

The next day, S.C. filed the underlying petition for adoption. See generally id. §§ 162.001-.026 (provisions governing adoption). The Department moved to strike, asserting that S.C. lacked standing, had no right to possession or access under an existing court order, did not have the Department's consent to the suit, and did not fall within any statutory exceptions. In June, an associate judge held a hearing and issued a letter stating his intention to grant the Department's motion to strike. S.C. filed a request for a de novo hearing, and in December 2019, the trial court held a hearing. At the conclusion of the hearing, the court granted the Department's motion to strike. S.C. now appeals from the trial court's order granting the Department's motion and dismissing her petition for adoption.

The petition was filed by both S.C. and her husband D.C. Many of the pleadings filed by S.C. were also filed on behalf of D.C. However, D.C. did not file a notice of appeal, and we thus limit our discussion to the facts as relevant to S.C.


When the relationship between a child and her living parents is terminated, a suit affecting the parent-child relationship generally may not be filed by a former parent, the child's father, or "a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child." Id. § 102.006(a). That bar does not apply to a person who has "a continuing right to possession of or access to the child under an existing court order" or the consent of the child's managing conservator, guardian, or legal custodian. Id. § 102.006(b). Section 102.006 also allows a suit by the child's adult sibling or grandparent, "an aunt who is a sister of a parent of the child, or an uncle who is a brother of a parent of the child," provided that the suit is filed within ninety days after the date the parents' rights are terminated. Id. § 102.006(c).

S.C. argues for the first time on appeal that the trial court's application of section 102.006 violated her constitutional rights to due process and equal protection, depriving her of "a liberty interest to associate as traditional relatives," leveling an "as applied" challenge to the constitutionality of those provisions. As a general rule, an argument—including a challenge to a statute's constitutionality—is not preserved for appellate review unless it was first raised before the trial court. See, e.g., In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); A.C. v. Texas Dep't of Fam. & Protective Servs., 577 S.W.3d 689, 709 (Tex. App.—Austin 2019, pet. denied). However, even if S.C. had preserved these issues for appellate review, as explained below, we would overrule her contentions.

The Fourteenth Amendment guards against State deprivation of life, liberty, or property rights without due process of law, U.S. Const. amend. XIV, and the Texas Constitution requires due course of law, Tex. Const. art. I, § 19. Due process, "although incapable of precise definition, expresses the requirement of fundamental fairness," "determined by 'considering any relevant precedents and then . . . assessing the several interests that are at stake.'" In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (quoting Lassiter v. Department of Social Servs., 452 U.S. 18, 24-25 (1981)). We consider the private interest affected by the governmental action, the governmental interest promoted by the statute and the challenged proceeding, and the risk of erroneous deprivation of the private interest due to the procedures used. Id.

See also In re R.B., 225 S.W.3d 798, 801-03 (Tex. App.—Fort Worth 2007, no pet.) (noting differing rules on preservation of constitutional arguments in criminal and civil cases; explaining that when civil court has jurisdiction over claim and relevant statute is determined to be unconstitutional on its face, judgment is voidable, not void; and stating that if "constitutional claim would not render the trial court's order void, it is not fundamental error and cannot be asserted for the first time on appeal").

Courts start from a strong presumption that a statute is constitutionally sound and when possible interpret it in a manner that renders it constitutional. See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); In re A.M., 312 S.W.3d 76, 85 (Tex. App.—San Antonio 2010, pet. denied). The party challenging a statute has the burden to establish its unconstitutionality. Walker, 111 S.W.3d at 66; A.M., 312 S.W.3d at 86. In an "as applied" challenge, the party must show that the statute is unconstitutional when applied to her circumstances. Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995); A.M., 312 S.W.3d at 86.

As observed in A.M., a case in which an aunt and a grandmother challenged the constitutionality of section 102.006, the statute in question here, "the challenged procedure is the application of standing requirements" that bar a party from petitioning to adopt the children. 312 S.W.3d at 86. "The governmental interest is the State's interest in promoting the welfare of children and ensuring that 'children's lives are not held in limbo while judicial processes crawl forward.'" Id. at 86-87 (quoting In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003)). "The goal of establishing a stable, permanent home for a child is a compelling state interest." Id. at 87.

S.C. asserts that the private interest at stake is her "liberty interest to associate as traditional relatives including aunts, uncles, cousins, and grandparents in certain circumstances." Put another way, she asserts that as great-aunt, she has "a fundamental interest in the parent/child relationship which was extended to traditional relatives in Moore v. City of East Cleveland." See 431 U.S. 494 (1977). We will assume for the sake of argument that S.C. has a protected liberty interest to associate with the children as their great-aunt. But see Connor v. Deckinga, No. 4:10-CV-855-Y, 2013 WL 991251, at *8-9 (N.D. Tex. Mar. 14, 2013) (holding that grandmother did not clearly establish constitutional right to custody of grandchildren); In re I.M.S., No. 14-07-00638-CV, 2008 WL 5059179, at *3-4 (Tex. App.—Houston [14th Dist.] Dec. 2, 2008, no pet.) (mem. op.) (noting that grandparent had not cited "case law establishing that grandparents have a common law right to possession of or access to their grandchildren" and rejecting argument "that grandparents have a fundamental right to possession or access because the United States Supreme Court has not expressly rejected such a right").

In that case, Moore, who lived with her son, one of his children, and a grandson by another child, challenged the constitutionality of an ordinance that limited occupancy in a home to a single family, narrowly defined to include only a husband or wife, their unmarried children, their parents, and up to one dependent child's spouse and children. Moore v. City of E. Cleveland, 431 U.S. 494, 495-97 & n.2 (1977). The Court observed that "certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause," id. at 501; noted that the ordinance served its purported goals of preventing overcrowding and traffic "marginally, at best," id. at 500; and cautioned against drawing a line at "the first convenient, if arbitrary boundary—the boundary of the nuclear family," id. at 502. The Court also noted the "venerable" tradition of "uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children" and held that "the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns." Id. at 504-05. Although Moore does state that families have an interest in defining themselves more freely than the ordinance had done, we do not read it as obviously extending a "fundamental interest in the parent/child relationship" to S.C. simply by dint of her status as great-aunt. See In re I.S., No. 05-15-01450-CV, 2016 WL 3005721, at *3-4 (Tex. App.—Dallas May 23, 2016, pet. denied) (mem. op.) (concluding that because appellant aunt had not "established a 'broader family' relationship" with child, "Moore does not support Aunt's argument" that she had liberty interest in relationship with child as extended in Moore "to traditional relatives, including aunts and uncles").

The issue thus requires a weighing of the risk that S.C.'s asserted liberty interest will be erroneously deprived by the application of section 102.006's limits on standing. See L.H. v. Texas Dep't of Fam. & Protective Servs., No. 03-13-00348-CV, 2014 WL 902555, at *2 (Tex. App.—Austin Mar. 6, 2014, no pet.) (mem. op.) (section 102.006 "does not confer standing but limits the standing of persons who would otherwise have standing"). As noted earlier, section 102.006 generally bars a relative from seeking to adopt a child if the person is related to a parent whose rights were terminated. Tex. Fam. Code § 102.006(a)(3). The statute exempts from that limitation someone who has "a continuing right to possession of or access to the child under an existing court order" or the consent of the child's managing conservator or guardian. Id. § 102.006(b). It also exempts an adult sibling, grandparent, blood aunt, or blood uncle who seeks to adopt the child within ninety days of the termination of parental rights. Id. § 102.006(c); see A.M., 312 S.W.3d at 87 ("section 102.006 is not an absolute bar to a relative seeking to adopt a child related by blood" because relative has standing if she files suit within ninety days).

S.C. argues that the fact that section 102.006(c) does not apply to her as the children's great-aunt, as opposed to aunt, violates her rights. However, S.C. did not file any of her petitions within ninety days of the date the children's parents' rights were terminated, and as noted by the A.M. court, section 102.006(c)—and its ninety-day deadline—"is published law," and "[t]he rule is too elementary to require the citation of authority that all persons are conclusively presumed to know the law." 312 S.W.3d at 87 (quoting E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 23 S.W.2d 695, 697 (Tex. 1930)). Thus, S.C. as great-aunt cannot show that the subsection's limitations on which relatives have standing violate her rights as applied to her and her circumstances. See id. ("imposing the 90-day deadline furthers the compelling governmental interest of providing stability for the child"). We overrule S.C.'s first issue, challenging the constitutionality of subsection (c) as applied to her.

S.C. argues that the Department failed to tell her that there was a ninety-day deadline. However, even if the ninety-day deadline should be extended to S.C. as great-aunt, as noted above, the ninety-day deadline is published law, see In re A.M., 312 S.W.3d 76, 87 (Tex. App.—San Antonio 2010, pet. denied) (quoting E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 23 S.W.2d 695, 697 (Tex. 1930)), S.C. was represented by counsel, and there is no indication that she or her attorney were unaware of the date the parents' rights were terminated.

We next turn to S.C.'s second issue, challenging subsection (b), which allows someone to seek to adopt if she has a "continuing right to possession of or access to the child under an existing court order" or if the child's guardian or managing conservator consent. Tex. Fam. Code § 102.006(b). S.C. argues that the trial court erred "in applying a strict adherence to [subsection] 102.006(b) . . . by not finding an exception to the 90-day bar for standing based upon an implied in fact contract between" S.C. and the Department, which was created when the Department led her to believe that she was "being considered as adoptive placement." S.C. does not assert that she has a continuing right to possession under a court order, that the children were living with her and D.C., that they had a visitation order, or that there were any other orders in place that related to her. She thus has not shown that subsection (b) might somehow apply to her situation, even if flexibly applied. Whether S.C. was led to believe that she would be considered as an adoptive placement does not seem to bear on whether subsection (b) is unconstitutional as applied to these circumstances.

S.C. filed motions asking the trial court to waive the requirement that the Department consent to her petition and to place the children with her, but she does not make any arguments related to those motions, nor do such motions raise any issues related to subsection (b).

Therefore, even if her challenges had been preserved, S.C. has not shown that section 102.006 is unconstitutional as applied. We overrule S.C.'s issues on appeal.


Having overruled S.C.'s appellate issues, we affirm the trial court's order granting the Department's motion to strike and dismissing S.C.'s petition.


Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: November 18, 2020

Summaries of

S.C. v. Tex. Dep't of Family & Protective Servs.

Nov 18, 2020
NO. 03-19-00965-CV (Tex. App. Nov. 18, 2020)
Case details for

S.C. v. Tex. Dep't of Family & Protective Servs.

Case Details

Full title:S. C., Appellant v. Texas Department of Family and Protective Services…


Date published: Nov 18, 2020


NO. 03-19-00965-CV (Tex. App. Nov. 18, 2020)

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