VACATE and DISMISS; and Opinion Filed June 1, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01629-CV

                          IN THE INTEREST OF I.C.G., A CHILD

                      On Appeal from the 301st Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DF-07-00258-T

                             MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                Opinion by Justice Lang-Miers
       CPG (Father) appeals the trial court’s order terminating his parental rights to ICG (Child)

arguing that the trial court did not have jurisdiction to terminate his parental rights because the

petitioner did not have standing. We agree, and we vacate the trial court’s Final Order of

Termination and dismiss the petition for want of jurisdiction.

                                          BACKGROUND

       Mother and Father were in a relationship in 2004, but were not married. Mother gave

birth to Child on December 7, 2004, and gave him Father’s last name. On December 9, 2004,

Mother and Father signed a “State of Texas Acknowledgment of Paternity” declaring “under

penalty of perjury” that Father was the biological father of Child. At some point, Mother and

Father ceased to be “girlfriend/boyfriend.” In a January 2007 order, the trial court appointed

Father and Mother joint managing conservators of Child and ordered Father to pay child support.
The record reflects that over the next few years Mother and Father filed various pleadings

involving modification of child support and possession of Child.

             Sometime in 2013, 1 Child filed a petition challenging Father’s acknowledgment of

paternity. Father answered, asserting a general denial and affirmative defenses of statute of

limitations, fraud, and lack of legal capacity. In early 2013, Child, through “his GUARDIAN,

NEXT FRIEND [MOTHER],” amended the petition, alleged that another man, EH, was his

biological father, and sought to change his last name to EH’s last name. Child alleged that EH

had taken a DNA test in 2007 that proved to a 99.5% probability that EH was Child’s biological

father. Child alleged that Mother “did not have sexual relations with [Father] for a minimum of

four (4) months before [Child] was conceived and in fact she was living with [EH] . . . during

those 4 months preceding the conception of [Child].”                                   As alternative relief, Child sought

involuntary termination of Father’s parental rights under Texas Family Code section

161.001(1)(D) and (E). 2 Also in early 2013, the trial court suspended Father’s access to and

possession of Child and obligation to pay child support.

             About a year later, Father moved to enforce his periods of possession and access. The

court appointed an “amicus attorney to represent the child the subject of this suit.” Meanwhile,

Father obtained new counsel and filed objections and special exceptions to Child’s amended

petition. Father also amended his answer to allege, among other things, that Child lacked

standing to obtain the relief sought in the amended petition.

             The court set the matters for a bench trial. At trial, Mother presented testimony that the

acknowledgment of paternity form was presented to her “while [she] was sedated right after I

     1
         The original petition is not in the clerk’s record.
     2
        The subsection (D) ground for termination states that a parent has “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of the child[.]” TEX. FAM. CODE ANN. § 161.001(1)(D) (West
2014). The subsection (E) ground for termination states that a parent has “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the child[.]” Id. § 161.001(1)(E).



                                                                   –2–
had my child” and implied that Father signed it fraudulently. Mother said she “went to the AG’s

office to have the child support terminated” in 2007 and, pursuant to a conversation she had

there, paid for a DNA test for EH. 3

           On cross-examination, Mother agreed that she signed documents, including a court order,

in January 2007 acknowledging that Father was Child’s biological father. She testified that she

did not know until she hired a lawyer that she had only four years to contest an acknowledgment

of paternity, and that is why Child filed the petition through Mother as next friend. 4 The trial

court told Mother that she understood that Mother believes Father “is not the biological parent,

[but] he has been found by a court to be the parent of this child.” The court advised the parties

that they needed “to focus in on” the question of “whether it is in the best interest of this child

that we terminate the parental rights of [Father].”

           After the presentation of evidence and an oral report from the amicus attorney regarding

the best interest of the child, the court took the matter under advisement. The court subsequently

issued an order terminating the parent-child relationship between Father and Child on the

subsection (D) ground. The court also ordered Mother to “initiate a case with the Office of the

Attorney General for the child the subject of this suit and [EH] (the biological father) within 45

days of the entry of this order.” And the court ordered that Mother “may change the name on the

child’s birth certificate from [ICG] to [ICH].” The court filed findings of fact and conclusions of

law.

           Father appealed the trial court’s Final Order of Termination contending that (1) Child did

not having standing to sue for the relief granted by the trial court, (2) the evidence was factually

and legally insufficient to support the termination of Father’s parental rights, and (3) the trial

   3
       The DNA test was not offered into evidence and is not part of our appellate record.
   4
       Mother’s lawyer also represented to the trial court that “the suit was brought by the child . . . .”



                                                                         –3–
court erred by permitting the amicus attorney to testify at trial and by improperly considering and

making findings based on matters outside the trial record. Mother did not file a brief. The

Office of the Attorney General filed an amicus brief addressing the trial court’s order to

adjudicate EH as Child’s biological father, but none of the arguments in its brief affect the issues

on appeal.

        During the pendency of this appeal, Father filed an emergency motion asking us to

suspend the operation of the trial court’s Final Order of Termination. We stayed the portions of

the Final Order of Termination that required Mother to initiate a suit to adjudicate EH as Child’s

father and permitted Mother to change Child’s name on Child’s birth certificate.

                                              DISCUSSION

        In issue one, Father argues that the trial court did not have jurisdiction to terminate his

parental rights because Child did not have standing to seek involuntary termination of Father’s

parental rights. We agree.

        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). The petitioner is required to allege facts affirmatively demonstrating

the trial court has jurisdiction to hear the case. Id.

        The Texas Family Code defines who has standing to file an original suit affecting the

parent-child relationship (SAPCR). In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas

2012, pet. denied). Consequently, the petitioner “‘must plead and establish standing within the

parameters of the language used in the code.’” Id. (quoting In re M.K.S.-V., 301 S.W.3d at 464).

Whether a party has standing to pursue a cause of action is a question of law which we review de

novo. Id.




                                                  –4–
       In this case, the petition for involuntary termination begins, “NOW COMES [ICG], a

child by and through, his GUARDIAN, NEXT FRIEND [MOTHER] . . . .” In the opening

paragraphs, the petition defines “Petitioner” as Child, “by and through, his GUARDIAN, NEXT

FRIEND [MOTHER] . . . .” In paragraph three, the amended petition refers to the trial court’s

“continuing exclusive jurisdiction over the subject matter of this suit because . . . the court’s final

decree . . . rendered on May 23, 2011, . . . was a modification of child support and establishment

of arrearage.” Paragraph four refers to the court’s “child custody jurisdiction” under family code

section 152.201. And paragraph eight states, “Petitioner requests the involuntary termination of

the parent child relationship BETWEEN [CPG] and the child [ICG] under Tex. Family Code

§ 161.001(1)(D) and (E).”

       None of the allegations in the amended petition cites a provision in the family code

giving Child standing to seek involuntary termination of Father’s parental rights. See In re

E.G.L., 378 S.W.3d at 547 (party seeking relief must plead and establish standing). Chapter 161

of the family code governs “Termination of the Parent-Child Relationship.” TEX. FAM. CODE

ANN. §§ 161.001–.211 (West 2014). Chapter 161 does not contain a provision giving a child

standing to file a SAPCR. See id. We next look to the family code’s general standing statute.

Id. § 102.003 (“General Standing to File Suit”). It states that an original SAPCR may be filed by

fourteen different persons, including:

       (1) a parent of the child;

       (2) the child through a representative authorized by the court;

       (3) a custodian or person having the right of visitation with or access to the child
       appointed by an order of a court of another state or country;

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

       ....



                                                 –5–
Id. § 102.003(a)(1)–(14). None of the provisions of section 102.003 gives standing to a child

through the child’s mother as next friend. And the amended petition in this case is clear, and is

confirmed by Mother’s testimony and her lawyer’s representation to the trial court, that Child

filed the SAPCR and is the petitioner.

                                         CONCLUSION

       The amended petition does not plead or establish that Child has standing, and we have

not found a provision in the family code giving a child standing, to seek involuntary termination

of the child’s relationship with a parent. Because Child lacked standing, the trial court did not

obtain subject matter jurisdiction over the petition to terminate Father’s parental rights.

Consequently, we vacate the December 9, 2014 Final Order of Termination and dismiss the

amended petition seeking to involuntarily terminate Father’s parental rights for want of

jurisdiction. See TEX. R. APP. P. 43.2(e). Because of our disposition of issue one, we do not

need to reach issues two and three.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE

141629F.P05




                                              –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF I.C.G., A CHILD                   On Appeal from the 301st Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-01629-CV                                   Trial Court Cause No. DF-07-00258-T.
                                                     Opinion delivered by Justice Lang-Miers,
                                                     Justices Francis and Whitehill participating.

        In accordance with this Court’s opinion of this date, we VACATE the trial court’s
December 9, 2014 Final Order of Termination and DISMISS for want of trial court jurisdiction
I.C.G.’s Amended Petition to Challenge Acknowledgement of Paternity in which I.C.G. sought
to involuntarily terminate Cyrus Palmer Gates’s parental rights.

       It is ORDERED that appellant Cyrus Palmer Gates recover his costs of this appeal from
appellee Cashunda Nicholson.
.


Judgment entered this 1st day of June, 2015.




                                               –7–
