                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00265-CV


IN THE INTEREST OF D.A., A
CHILD


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-100117-14

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                        MEMORANDUM OPINION 1

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      Appellant, D.A.’s paternal grandmother, appeals from the trial court’s order

dismissing her suit seeking termination of D.A.’s mother’s parental rights and

adoption of D.A. for lack of standing. We reverse and remand.

                                  Background

      After D.A.’s father’s parental rights––but not his mother’s––were

terminated in a proceeding brought by the Texas Department of Family and


      1
      See Tex. R. App. P. 47.4.
Protective Services, Grandmother filed suit seeking to have the mother’s parental

rights terminated so that she could adopt D.A. The Department, who was D.A.’s

permanent managing conservator, sought to have the suit dismissed for lack of

standing and because granting her party status would not be in D.A.’s best

interest. After Grandmother failed to appear at a hearing on the Department’s

motion to dismiss, the trial court signed an order dismissing the suit for lack of

standing.

                                     Analysis

      Grandmother asserts that the trial court violated her due process rights by

dismissing the suit because she showed that she has standing under either

sections 102.004(b), 102.005, or 102.006 of the family code.

Standard of Review

      Whether a plaintiff has standing is a question of law that we review de

novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.

2004); In re Kelso, 266 S.W.3d 586, 590 (Tex. App.––Fort Worth 2008, orig.

proceeding).    When a plea to the jurisdiction––such as the Department’s

standing complaint here––challenges the pleadings, we determine if the pleader

has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the

cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). We construe the pleadings in the pleader’s favor. Id.; In re C.M.V., 136

S.W.3d 280, 284–85 (Tex. App.––San Antonio 2004, no pet.). Standing to bring

a suit affecting the parent-child relationship is governed by the family code. In re


                                         2
McDaniel, 408 S.W.3d 389, 397 (Tex. App.––Houston [1st Dist.] 2011, orig.

proceeding).

Family Code Section 102.004(b)

      Section 102.004(b) provides that

      [a]n original suit requesting possessory conservatorship may not be
      filed by a grandparent or other person. However, the 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 filed by a person authorized to do so under this
      subchapter if there is satisfactory proof to the court that appointment
      of a parent as a 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) (West 2014). Because section 102.004(b)

applies only to a petition in intervention brought in a pending suit, and this suit

was not brought via a petition in intervention but rather an original petition

seeking termination and adoption, we conclude and hold that Grandmother did

not show standing under section 102.004(b) of the family code. 2



      2
       Grandmother did not file a suit seeking possessory conservatorship only;
thus, section 102.004(b) would not apply for that reason as well. Additionally,
Grandmother has not shown standing under section 102.004(a) because neither
the Department nor D.A.’s mother have consented to the suit. See Tex. Fam.
Code Ann. § 102.004(a). Although Grandmother complains that they are
wrongfully withholding such consent, she has cited no authority, and we have
found none, obligating the Department or D.A.’s mother to consent to
Grandmother’s suit. Cf. In re A.M., 312 S.W.3d 76, 83–84 (Tex. App.––San
Antonio 2010, pet. denied) (explaining that concept of wrongful withholding of
consent to adoption is not implicated in standing analysis but rather when
considering merits of adoption petition); In re M.K.S.-V., 301 S.W.3d 460, 466
(Tex. App.––Dallas 2009, pet. denied) (op. on reh’g) (noting same).


                                         3
Section 102.006

      Section 102.006(a) of the family code provides,

      (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:

         (1) a former parent whose parent-child relationship with the child
             has been terminated by court order;

         (2) the father of the child; or

         (3) 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.

Tex. Fam. Code Ann. § 102.006(a) (West 2014) (emphasis added).                  Thus,

section 102.006 does not confer standing, but rather limits standing that might

otherwise be conferred by other sections of the family code. L.H. v. Tex. Dep’t of

Family & Protective Servs., No. 03-13-00348-CV, 2014 WL 902555, at *2 (Tex.

App.––Austin Mar. 6, 2014, no pet.) (mem. op.); In re J.C., 399 S.W.3d 235, 239

(Tex. App.––San Antonio 2012, no pet.). Here, subsection 102.006 does not

apply to limit Grandmother’s standing to file an original suit for termination and

adoption because only D.A.’s father’s rights have been terminated. See Tex.

Fam. Code Ann. § 102.006(a). Thus, we must determine whether Grandmother

showed standing to file suit under section 102.005 of the family code; the

Department contended in its motion to dismiss that she did not.




                                           4
Section 102.005

      Section 102.005 sets forth the standing requirements to file an adoption

suit and provides as 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:

            (1) a stepparent of the child;

            (2) an adult who, as the result of a placement for adoption,
                has had actual possession and control of the child at any
                time during the 30-day period preceding the filing of the
                petition;

            (3) an adult who has had actual possession and control of the
                child for not less than two months during the three-month
                period preceding the filing of the petition;

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

            (5) another adult whom the court determines to have had
                substantial past contact with the child sufficient to warrant
                standing to do so.

Id. § 102.005 (West 2014); see In re J.C., 399 S.W.3d at 239. Grandmother

argues in her brief, and she argued in her motion for new trial, 3 that she has

shown sufficient substantial past contact with D.A. to confer standing under

section 102.005.

      3
        The State contends that Grandmother had the opportunity to “present
evidence and witness testimony” at the motion for new trial hearing but that she
“failed to avail herself of that opportunity.” However, the trial court told
Grandmother that she could call witnesses only to address why she failed to
appear at the motion to dismiss hearing and not to address the merits of the
standing issue.


                                         5
      In an affidavit attached to the petition, Grandmother averred that D.A. had

lived with her from December 16, 2012 through November 7, 2013, from

March 13, 2008 through July 28, 2010, and about 75% of the time from 2006

through 2008. We take these allegations favorable to the nonmovant as true.

See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 503 (Tex. 2010).             The

Department did not offer any evidence at the hearing on its motion; 4 instead, it

argued that Grandmother’s petition showed that D.A. had not been in her care

since October 2013. It presented no other argument regarding “substantial past

contact”; instead, it additionally argued that Grandmother had had a prior suit

seeking possessory conservatorship dismissed for lack of standing.            D.A.’s

attorney ad litem argued that D.A. had been removed from a prior placement with

Grandmother because she allowed D.A. to see his parents prior to the

termination of his father’s rights. The attorney ad litem also argued that D.A. was

thriving in his then-current placement.

      Nothing in the language of section 102.005 incorporates a best interest

determination into the statutory requirements for standing. 5 See Tex. Fam. Code


      4
        Cf. Tex. R. Civ. P. 165a (requiring court to notify party seeking affirmative
relief of intention to dismiss for want of prosecution for failure to appear at
hearing); Parnell v. Parnell, No. 2-09-270-CV, 2010 WL 2331411, at *2–3 (Tex.
App.––Fort Worth June 10, 2010, no pet.) (mem. op.) (explaining that trial court
may not dismiss under rule 165a if it only provides notice of potential dismissal
for lack of prosecution with due diligence, and vice versa).
      5
       Compare Tex. Fam. Code Ann. § 102.005, with id. § 102.004(a)(1)
(conferring standing only upon satisfactory proof of suit’s merits––that
appointment of grandparent as managing conservator is necessary because the

                                          6
Ann. § 102.005(5); cf. In re Lee, 411 S.W.3d 445, 454–55 (Tex. 2013) (orig.

proceeding) (reasoning that although family code section 153.002 provides that

“[t]he best interest of the child shall always be the primary consideration of the

court in determining the issues of conservatorship and possession of and access

to the child,” the legislature has seen fit to dispense with the best interest

requirement in other parts of the family code). Thus, we do not consider those

arguments by the Department in reviewing the trial court’s determination of

whether Grandmother’s petition alleged facts sufficient to show standing under

section 102.005. Nor do we consider Grandmother’s lengthy arguments outside

the record regarding the prior termination proceeding and related events.

      However, even though Grandmother did not specifically name in her

petition the statute under which she was seeking standing, she did provide a

sworn, uncontroverted affidavit that showed D.A. had lived with her for

approximately three of his then-ten years and had lived with her for about 75% of

the time during two other years. Section 102.005 does not place a time limitation

on “substantial past contact” such that Grandmother’s lack of contact with D.A.

within the six-month period preceding the filing of her petition would prevent the

court from considering the evidence she provided showing that D.A. had lived

with her for approximately half of his life. See In re C.M.C., 192 S.W.3d 866,

870–72 (Tex. App.––Texarkana 2006, no pet.) (defining “substantial” as “of

child’s present circumstances would significantly impair the child’s physical
health or emotional development).


                                        7
ample or considerable amount, quantity, size, etc.”); cf. In re M.J.R.B., No. 12-11-

00004-CV, 2012 WL 4502433, at *2–3 (Tex. App.––Tyler Sept. 28, 2012, no pet.)

(mem. op.) (holding that foster parents with whom child had lived for seven

months prior to filing of suit met standing requirements under both subsections

(3) and (5) of family code section 102.005).         We conclude and hold that

Grandmother’s petition alleged facts sufficient to show that she had “substantial

past contact” with D.A. as contemplated by section 102.005(5). Accordingly, we

further conclude and hold that the trial court erred by granting the Department’s

motion to dismiss based on Grandmother’s alleged failure to plead sufficient facts

to show standing to bring her suit for termination and adoption.

                                   Conclusion

      Having determined that the trial court erred by granting the Department’s

motion to dismiss Grandmother’s suit for lack of standing, we reverse the trial

court’s order of dismissal. We remand the case to the trial court.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., filed a dissenting opinion.

DELIVERED: February 5, 2015




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