                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                                     OPINION
                                               No. 04-12-00131-CV

                                  IN THE INTEREST OF N.A.D., a Child

                      From the 218th Judicial District Court, Atascosa County, Texas
                                    Trial Court No. 10-11-0822-CVA
                               Honorable Thomas F. Lee, Judge Presiding 1

Opinion by:         Sandee Bryan Marion, Justice

Sitting:            Catherine Stone, Chief Justice
                    Sandee Bryan Marion, Justice
                    Rebeca C. Martinez, Justice

Delivered and Filed: February 13, 2013

AFFIRMED

           This is an appeal from the trial court’s order dismissing a petition filed by Andres 2 and

Terry (hereinafter collectively, the “appellants”) in which appellants sought to modify the

managing conservatorship of their grandchild, N.A.D. We affirm.

                                                 BACKGROUND

           N.A.D. was born to Marissa and Nicholas on August 26, 2009. On November 4, 2010,

the Texas Department of Family and Protective Services (“the Department”) filed a petition

seeking termination of Marissa’s and Nicholas’s parental rights.                         The parents later signed

affidavits of relinquishment and, on September 22, 2011, the trial court orally rendered judgment

1
    Sitting by assignment.
2
  For the protection of the identity of the minor child, all adults will be referred to as either appellant(s) or by their
first name only. See TEX. R. APP. P. 9.8(b).
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terminating their parental rights and naming the Department as managing conservator of N.A.D. 3

Also on September 22, appellants, who were not parties to the termination proceedings, filed a

petition seeking to modify the trial court’s oral rendition of conservatorship to the Department

and asking that they be appointed managing conservator and as “the person who has the right to

designate the primary residency of the child as managing conservatorship and all rights and

duties normally afforded a parent of the child.” The Department moved to dismiss the petition

on the procedural ground that appellants had not attached the affidavit required by Texas Family

Code section 156.102(a). The trial court granted the motion to dismiss without prejudice. This

appeal ensued.

                                                 DISCUSSION

           Family Code section 156.102(a) provides as follows: “If a suit seeking to modify the

designation of the person having the exclusive right to designate the primary residence of a child

is filed not later than one year after the earlier of the date of the rendition of the order . . ., the

person filing the suit shall execute and attach an affidavit as provided by Subsection (b).” TEX.

FAM. CODE ANN. § 156.102(a) (West Supp. 2012). The affidavit must contain, along with

supporting facts, at least one of the following allegations:

           (1) that the child’s present environment may endanger the child’s physical health
           or significantly impair the child’s emotional development;
           (2) that the person who has the exclusive right to designate the primary residence
           of the child is the person seeking or consenting to the modification and the
           modification is in the best interest of the child; or
           (3) that the person who has the exclusive right to designate the primary residence
           of the child has voluntarily relinquished the primary care and possession of the
           child for at least six months and the modification is in the best interest of the
           child.

Id. § 156.102(b).



3
    The termination order was signed on October 11, 2011.

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        There is no dispute that appellants did not file an affidavit. Appellants contend that

because they have standing under Family Code section 102.006(c), no other requirements,

including the filing of an affidavit, need be satisfied. Section 102.006, entitled “Limitations on

Standing,” limits the standing of particular individuals when the parent-child relationship has

been terminated; it does not confer standing. See id. § 102.006(a) (“Except as provided by

Subsections (b) and (c), if the parent-child relationship between the child and every living parent

of the child has been terminated, an original suit may not be filed by . . . .”); see also In re A.M.,

312 S.W.3d 76, 81 (Tex. App.—San Antonio 2010, pet. denied) (explaining that section 102.005

details standing requirements for person filing petition for adoption and that section 102.006

“limits the standing of particular individuals in cases where an original suit is filed and the

parents’ rights were previously terminated”). An exception to the subsection (a) limitations on

standing is contained in subsection (c) of section 102.006. This exception applies narrowly in

those circumstances where the parent-child relationship is terminated in a suit filed by the

Department. TEX. FAM. CODE § 102.006(c). Under subsection (c) the limitations on filing suit

“do not apply to . . . a grandparent of the child . . . if the . . . grandparent . . . files . . . 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). Thus, when the Department seeks and obtains termination

of the parent-child relationship, subsection (c) allows grandparents with standing to file their suit

for modification within ninety days.

        However, the question of whether appellants have standing to bring their petition is

separate from the question of whether they must comply with the procedural requirement of

filing an affidavit in compliance with section 156.102. See In re B.G.D., 351 S.W.3d 131, 140
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(Tex. App.—Fort Worth 2011, no pet.) (holding that although a successful access suit might

require grandparent to satisfy section 153.433, whether grandparent ultimately will succeed is a

different question than whether grandparent has the right simply to bring suit); see also In re

C.M.C., 192 S.W.3d 866, 869–70 (Tex. App.—Texarkana 2006, no pet.) (holding decision

concerning whether a party has standing is not a decision deciding the merits of a case); In re

SSJ–J, 153 S.W.3d 132, 138 (Tex. App.—San Antonio 2004, no pet.) (“[S]tanding does not

mean the right to win; it is only a right to be heard.”). Thus, even if appellants have standing, the

question remains whether they are excused from filing an affidavit in accordance with section

156.102.

       Appellants assert they were not required to file an affidavit because they are not N.A.D.’s

parents, they were not parties to the termination suit, and the provisions of section 156.102 apply

only to divorcing parents and not to children in the Department’s care. Appellants rely on three

cases for their argument that the Legislature’s intent in enacting section 156.102 “was to assure

stability to the provision for custody of divorced parents and to prevent the custody award from

being relitigated within a short period of time, except in cases involving the children’s physical

health and emotional development.” Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.—Fort

Worth 1985, writ dism’d) (emphasis added); see also Burkhart v. Burkhart, 960 S.W.2d 321, 323

(Tex. App.—Houston [1st Dist.] 1997, pet. denied) (“The philosophical underpinning of section

156.102 is clear: the Legislature intended to promote stability in the conservatorship of children

of divorced parents.”); In re C.S., 264 S.W.3d 864, 873 (Tex. App.—Waco 2008, no pet.) (citing

to Burkhart).

       However, Mobley and Burkhart involved divorcing parents seeking a modification; thus,

we must read their specific holdings in that factual context. We do not agree these cases hold

that section 156.102 applies only to divorced parents or only to parties to the suit. Instead, we
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believe these cases stand for the more general proposition that the Legislature’s intent in enacting

section 156.102 was to discourage relitigation of custodial issues within a short period of time

after the custody order “through the imposition of a heightened standard of verified pleading.”

Burkhart, 960 S.W.2d at 323. “Public policy disfavors disruption of custodial arrangements

within the first year, except in cases in which the child’s physical health or emotional

development is imperiled.” Id. To that end, section 156.102 requires that “the person filing the

suit shall execute and attach an affidavit,” see TEX. FAM. CODE § 156.102(a), and that “an initial

determination be made by the court as to whether the facts sworn to in the affidavit supporting

the motion to modify justify a hearing.” Mobley, 684 S.W.2d at 229. We believe the Legislature

did not intend to limit section 156.102’s applicability solely to divorced parents or persons who

were parties to an underlying termination suit. And, we decline to read into section 156.102 an

exception the Legislature did not express. See Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011)

(interpreting Family Code section 154.066).

        Appellants next argue that section 156.102 does not include the Department within the

scope of the word “person.” Appellants point to the language of section 156.102(a), which

provides that in a suit seeking to modify the designation “of the person having the exclusive right

to designate the primary residence of a child,” for their argument that section 156.102 does not

apply to them because the Department is not a “person.”              TEX. FAM. CODE § 156.102(a)

(emphasis added).

        Although the Legislature has defined “person” in other Codes, nowhere in the Family

Code has the Legislature defined “person,” much less defined this word to include the

Department. 4 However, the cardinal rule of statutory construction is to ascertain and give effect


4
 Section 156.102 also does not define “Department”; however, another section defines “Department” as “the
Department of Family and Protective Services.” TEX. FAM. CODE ANN. § 263.001(a)(1) (West Supp. 2012). In

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to the Legislature’s intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). When

determining that intent, the Texas Code Construction Act guides our analysis.                                Klein v.

Hernandez, 315 S.W.3d 1, 6 (Tex. 2010). The Act provides that “unless the statute or context in

which the word or phrase is used requires a different definition” the following definition of

“person” applies to include a “corporation, organization, government or governmental

subdivision or agency, business trust, estate, trust, partnership, association, and any other legal

entity.” TEX. GOV’T CODE ANN. § 311.005(2) (West 2005) (emphasis added). We do not

believe the Family Code requires a different definition; therefore, we conclude section 156.102’s

use of the word “person” includes the Department.

                                                 CONCLUSION

         Based on the above, we are constrained to conclude that the procedural requirement of

section 156.102 applies to those persons, including appellants, who file suit to modify the

Department’s conservatorship of a child. Accordingly, we hold the trial court did not err in

dismissing appellants’ petition to modify the parent-child relationship without prejudice;

therefore, we affirm the order of dismissal.



                                                           Sandee Bryan Marion, Justice




other Codes, the Legislature has defined “person” to include various entities. See, e.g., TEX. CIV. PRAC. & REM.
CODE ANN. § 37.001 (West 2008) (defining “person” to include “an individual, partnership, joint-stock company,
unincorporated association or society, or municipal or other corporation of any character”); TEX. GOV’T CODE ANN.
§ 311.005(2) (West 2005) (defining “person” to include a “corporation, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity”); TEX. PROB.
CODE ANN. § 601(21) (West 2003) (defining “person” to include “natural persons, corporations, and guardianship
programs”).


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