                            NUMBER 13-12-00640-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

                    IN THE INTEREST OF J.M.F., A CHILD


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                        MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Benavides

      By two issues, appellants Joe Angel Sanchez and Mary Louise Sanchez argue

the trial court erred in holding: (1) that the Sanchezes lacked standing to adopt J.M.F.

under section 102.005(4) of the Texas Family Code; and (2) that section 102.006(c)

was not applicable to their circumstances. We reverse and remand.

                                   I. BACKGROUND

      Ada S. and Shain F. were the biological parents of A.F., S.F., and K.F. In 2011,

a Victoria County trial court terminated Ada and Shain’s parental rights of the three
children and allowed Ada’s brother, Joe Angel Sanchez, and his wife, Mary Louise, to

adopt them.

       Later that year, on November 29, 2011, the Department of Family and Protective

Services filed a petition to terminate the parental rights to Ada and Shain’s youngest

child, two-year-old J.M.F. The trial court granted this petition on January 23, 2012. The

Sanchezes subsequently filed an original petition to adopt J.M.F. on April 11, 2012. In

their petition, the Sanchezes informed the court that they were the “maternal uncle and

aunt of the child” and “the adoptive parents of [J.M.F.’s] siblings and have had

substantial contact with [J.M.F.].” The attorney and guardian ad litem of J.M.F. filed

special exceptions to the Sanchezes’ petition, arguing that they had no standing to file

suit and requested that their petition be dismissed.1 The trial court agreed and, in a

letter dated April 10, 2012 to the attorneys, explained his reasoning for dismissing the

petition:

       Joe Angel Sanchez and Mary Louise Sanchez have not alleged any
       grounds for standing to file an “original suit” under Family Code § 102.002,
       § 102.003, or § 102.004, nor a suit for modification under Family Code §
       156.002. Therefore, Joe Angel Sanchez and Mary Louise Sanchez do not
       have standing to file a SAPCR requesting managing conservatorship or
       possessory conservatorship.

       § 102.006(a) limits standing if one would otherwise have standing under
       the previous sections cited, but the (b) and (c) subsections are exceptions
       only to the limitation. One must have standing under § 102.002, §
       102.003, or § 102.004, before addressing the limitation and the exception
       to the limitation.

       § 102.006(a) also limits standing if one would otherwise have standing
       under § 102.005. Joe Angel Sanchez and Mary Louise Sanchez . . . have
       alleged that they are the aunt and uncle of the child and are the adoptive
       parents of the child’s siblings.


       1
            Based on the record, it appears that J.M.F.’s foster parents also filed a petition to adopt him.


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      An adult who has adopted . . . a sibling of a child [§ 102.005(4)] may not
      file an “original suit” requesting adoption only (termination not applicable
      since parental rights already terminated by order signed 1/23/2012) unless
      prohibited by § 102.006. § 102.006(a)(3) prohibits an “original suit” being
      filed by a relative of a former parent whose parent-child relationship has
      been terminated unless:

      (b)(1) that person has a continuing right to possession or access to the
      child under an existing court order (not alleged in pleadings);

      (b)(2) that person has the consent of the managing conservator (not
      alleged in pleadings that the “department” who is managing conservator
      has consented); or

      (c) if that person files an “original or modification” suit requesting
      managing conservatorship [less than] 90 days from the termination date
      (Court finds the 1/23/2012 date the order was signed is the termination
      date) in a suit filed by the department.

      Concerning the (c) exception to the limitation, since Joe Angel Sanchez
      and Mary Louise Sanchez do not have standing to file a SAPCR
      requesting managing conservatorship or possessory conservatorship as
      set forth in paragraphs 2 and 3 on page 1 of this letter, the (c) exception is
      inapplicable. Therefore, Joe Angel Sanchez and Mary Louise Sanchez
      also do not have standing to file an “original suit” requesting adoption
      only.”*

      * Note – if Joe Angel Sanchez and Mary Louise Sanchez had standing to
      file an adoption only, it would have had to be filed in a new cause rather
      than in this cause [§ 102.013(b)].

      During various hearings held during the pendency of this case, Joe Angel

testified that he, his wife, and their adopted children had “frequent,” almost “daily,”

interaction with J.M.F. until December 2010.      J.M.F. would spend the night at Joe

Angel’s home with his siblings A.F., S.F., and K.F. The parents and children would take

trips to their grandmother’s house, to McDonald’s, to grocery stores, and to the mall.

J.M.F. and his siblings also attended the same daycare. Joe Angel’s wife, Mary Louise,

provided similar testimony regarding her family’s frequent interaction with J.M.F.




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       The Sanchezes filed a “First Amended Original Petition for Adoption of a Child”

on August 27, 2012. The trial court this time dismissed their petition with prejudice,

again stating that they did not have standing. This appeal followed.

                                 II. STANDARD OF REVIEW

       “In an original suit affecting the parent-child relationship in which the petitioner

seeks adoption or managing conservatorship, the question of standing is a threshold

issue.” In re A.M., 312 S.W.3d 76, 80 (Tex. App.—San Antonio 2010, pet. denied).

Whether the Sanchezes have standing under the Texas Family Code must be

determined by the Texas Family Code. See Tex. Dep’t of Prot. & Regulatory Servs. v.

Sherry, 46 S.W.3d 857, 861 (Tex. 2001).           “When standing has been statutorily

conferred, the statute itself serves as the proper framework for a standing analysis.” In

re H.G., 267 S.W.3d 120, 123 (Tex. App.—San Antonio 2008, pet. denied) (citing

Sherry, 46 S.W.3d at 861). “The party seeking relief must allege and establish standing

within the parameter of the language used in the statute.” Id. at 124. “The Texas

Legislature has provided a comprehensive statutory framework for standing in the

context of suits involving the parent-child relationship.” Id. (citing TEX. FAM. CODE ANN. §

102.003–.006 (West 2008 & West Supp. 2011)).

       “Statutory construction is a legal question and is reviewed de novo.” In re A.M.,

312 S.W.3d at 81 (citing F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,

683 (Tex. 2007)). “In construing a statute, our primary objective is to determine the

legislature’s intent, which, when possible, we discern from the plain meaning of the

words chosen.” Id. (citing State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)).




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                                      III. DISCUSSION

A.     Standing Under Section 102.005(4)

       By their first issue, the Sanchezes argue that the trial court erred when it

concluded that they did not have standing to file an original suit for adoption under

section 102.005(4) of the Texas Family Code. We agree.

     1. Applicable Law

       Section 102.005 of the Texas Family Code addresses standing in termination

and adoption cases. The pertinent statute at issue, section 102.005(4), follows:

       An original suit requesting only an adoption or for termination of the
       parent-child relationship joined with a petition for adoption may be filed by:

       (4) an adult who has adopted, or is the foster parent of and has petitioned
           to adopt, a sibling of the child; . . . .

TEX. FAM. CODE ANN. § 102.005(4) (West Supp. 2011).

     2. Analysis

       Here, the Sanchezes filed an original suit requesting an adoption on April 11,

2012. See id. It is uncontested that the Sanchezes previously adopted J.M.F.’s older

three siblings, A.F., S.F., and K.F. See id. The Sanchezes, as the parties seeking

relief, meet the “parameter[s] of the language used in” section 102.005(4). In re H.G.,

267 S.W.3d at 124. We sustain their first issue.

B.     The Section 102.006(c) Exception to Standing

       Even if standing is established, section 102.006 can limit standing in cases

where the parent-child relationship has been terminated, such as in J.M.F.’s case. See

TEX. FAM. CODE ANN. § 102.006; see also In re M.G., No. 13-09-00305-CV, 2010 WL

2776566, at *2 (Tex. App.—Corpus Christi July 15, 2010, no pet.) (mem. op.). By their



                                             5
second issue, the Sanchezes aver that the trial court erred in concluding that section

102.006 limited their standing to adopt J.M.F. Specifically, the Sanchezes contend that

the trial court erred when it concluded that the exception enumerated in section

102.006(c) did not apply to them.

1.     Applicable Law

       Section 102.006 generally provides that relatives of terminated parents do not

have standing to file an original suit concerning the child.         TEX. FAM. CODE ANN. §

102.006(a)(3) (providing that “a family member . . . by blood . . . of either a former

parent whose parent-child relationship has been terminated” does not have standing to

file an original adoption petition). However, section (c) provides an exception to this

limitation:

       The limitations on filing suit imposed by this section do not apply to an
       adult sibling of the child, a grandparent of the child, 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
       if the adult sibling, grandparent, aunt, or uncle files an original suit or a suit
       for modification requesting managing conservatorship of the child not later
       than the 90th day after the date the parent-child relationship between the
       child and the parent is terminated in a suit filed by the Department of
       Family and Protective Services requesting the termination of the parent-
       child relationship.

Id. § 102.006(c).

2.     Analysis

       Joe Angel Sanchez was Ada S.’s brother and J.M.F.’s natural uncle. Therefore,

he would be ineligible to bring suit under 102.006(a)(3) because he was a                   “family

member . . . by blood . . . of either a former parent whose parent-child relationship has

been terminated.” Id. § 102.006(a)(3). However, Joe Angel asserted that he timely

brought his original suit under the subsection (c) and, thus, did have standing. The



                                               6
court terminated trial court terminated Ada S. and Shain F.’s parental rights to J.M.F. on

January 23, 2012 and the Sanchezes filed their original petition for adoption on April 11,

2012. Joe Angel filed his suit 79 days after the termination was granted and, therefore,

well within the 90-day deadline set forth by subsection (c).

        The trial held, however, that the subsection (c) exception was inapplicable to the

Sanchezes because they did “not have standing to file a SAPCR requesting managing

conservatorship or possessory conservatorship,” presumably under section 102.003.

See TEX. FAM. CODE ANN. § 102.003 (listing persons who generally have standing to file

suit in SAPCRs). The Sanchezes, though, did not file a SAPCR requesting managing

conservatorship or possessory conservatorship under section 102.003.                            See id.

Instead, they filed an original petition for adoption under section 102.005. See id. §

102.005. Section 102.006(c) is drafted disjunctively—persons can either file “an original

suit” or “a suit for modification requesting managing conservatorship.”                See In re A.M.,

312 S.W.3d at 81–82 (holding that although aunt met the standing criteria of section

102.005 to file an original suit to adopt, she did not meet the section 102.006(c)

exception because she filed her lawsuit six months after termination). Here, Joe Angel

and Mary Louise timely filed “an original suit” for adoption on April 11, 2012 after the

trial court terminated J.M.F.’s parents’ parental rights.2

        Accordingly, we hold that the Sanchezes fit “within the parameters” of the

exception established by section 102.006(c) because Joe Angel was a natural uncle of

J.M.F. who filed an original petition within 90 days of the date J.M.F.’s parents’ parental




        2
          As noted earlier in the opinion, the Sanchezes also filed a “First Amended Original Petition for
Adoption of a Child” on August 27, 2012.

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rights were terminated. See in re H.G., 267 S.W.3d at 124. We sustain the Sanchezes’

second issue.

                                  IV. CONCLUSION

       Having sustained Joe Angel and Mary Louise Sanchez’s issues on appeal, we

reverse the trial court’s judgment and remand the case to the court for proceedings

consistent with this opinion.



                                                   __________________________
                                                   GINA BENAVIDES,
                                                   Justice

Delivered and filed the
26th day of September, 2013.




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