











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00089-CV
______________________________


IN THE INTEREST OF
C.M.C. AND J.T.C., MINOR CHILDREN
 


                                              

On Appeal from the 300th Judicial District Court
Brazoria County, Texas
Trial Court No. 32157


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
Concurring & Dissenting Opinion by Justice Ross

O P I N I O N

            Lindsay Tope and Milton D. Tope appeal the trial court's granting of Brazoria County
Children Protective Services' (CPS) motion to dismiss their petition for adoption based on lack of
standing.
  The Topes are the maternal grandparents of the children they are seeking to adopt. When
Melissa Cole, Lindsay Tope's daughter, and her husband had their parental rights terminated on or
about November 29, 2004,
 the children were placed with their paternal aunt.  On January 27, 2005,
the Topes filed a petition to adopt their grandchildren.  On February 17, 2005, CPS filed a "motion
to dismiss" alleging the Topes lack standing to file an original petition for adoption.  Seven days
later, on February 24, 2005, the trial court held a hearing on CPS' motion and dismissed the petition. 
            The Topes complain that the trial court erred in three respects in dismissing the suit: 
1) because there was no procedural basis to dismiss the Topes' case, 2) the out-of-state grandparents
had "substantial past contact" with the children, and 3) without allowing the Topes to discover
evidence concerning CPS' refusal to consent to the adoption.  Because standing can be challenged
through procedural means other than summary judgment and the Topes did not have substantial past
contact as a matter of law, we affirm the judgment of the trial court.
Standing Can Be Challenged By Means Other Than Summary Judgment
            In their first point of error, the Topes argue the trial court erred procedurally in dismissing
the case.  Standing, as a necessary component of a court's subject-matter jurisdiction, is a
constitutional prerequisite to maintaining a suit under Texas law.  Tex. Ass'n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).  If a party lacks standing, a court lacks subject-matter
jurisdiction to hear a case.  Id.  According to the Topes, an objection to standing may only be
resolved by summary judgment.  The Topes argue, because standing can only be raised by a motion
for summary judgment, the trial court erred in hearing the motion to dismiss without the
twenty-one-day notice required for a summary judgment motion.  In addition, the Topes argue that
standing is not an issue which can be raised through a motion to dismiss and that a dismissal is an
inappropriate means to decide the merits of a case.
            The Topes cite Gordy v. Alexander, 550 S.W.2d 146, 149 (Tex. Civ. App.—Amarillo 1977,
writ ref'd n.r.e.), overruled on other grounds by statute as stated in Bank of Southwest, Nat'l Ass'n
v. Stehle, 660 S.W.2d 572, 573 (Tex. App.—San Antonio 1983, writ ref'd n.r.e.), in support of their
proposition that standing can be challenged only by summary judgment.  In Gordy, the Amarillo
Court of Appeals held that standing could only be challenged through a motion for summary
judgment.  Gordy, 550 S.W.2d at 149.  The Topes contend they were entitled to twenty-one days'
notice of the hearing pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure applicable to
summary judgments.  See Tex. R. Civ. P. 166a(c).
            While the issue of standing can be brought in the form of a summary judgment, standing can
also be raised by other procedural means.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000); see In re Pringle, 862 S.W.2d 722, 724 (Tex. App.—Tyler 1993, no pet.); cf. Caso-Bercht
v. Stricker Indus., 147 S.W.3d 460, 463 (Tex. App.—Corpus Christi 2004, no pet.) (standing
challenged by summary judgment).  Since Gordy was decided, the Texas Supreme Court has
specifically authorized standing to be challenged through a plea to the jurisdiction.  See Blue, 34
S.W.3d at 554. 
            CPS' motion to dismiss is in essence a plea to the jurisdiction.
  A motion should be
construed by its substance to determine the relief sought, not merely by its form or caption.  Surgitek
Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999).  In its motion, CPS argues that the
Topes lack standing under the Texas Family Code to bring the petition for adoption.  "Whether a
determination of subject-matter jurisdiction can be made in a preliminary hearing or should await
a fuller development of the merits of the case must be left largely to the trial court's sound exercise
of discretion."  Blue, 34 S.W.3d at 554.  Rule 166a does not apply under the circumstances of this
case.
            The Topes also argue that a motion to dismiss is an inappropriate method to resolve the
merits of a case and that the trial court erred in dismissing the suit because standing is not a basis for
dismissal under the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 150–165a.  The Topes are
correct that dismissal is an inappropriate means of deciding the merits of a case.  See Lane v. Baxter
Healthcare Corp., 905 S.W.2d 39, 41 (Tex. App.—Houston [1st Dist.] 1995, no writ); VanZandt v.
Holmes, 689 S.W.2d 259, 261 (Tex. App.—Waco 1985, no writ).  However, a decision concerning
whether a party has standing is not a decision deciding the merits of a case.   See Blue, 34 S.W.3d
at 554.  "A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of
action without regard to whether the claims asserted have merit."  Id.  Without subject-matter
jurisdiction, the trial court must dismiss the case.  Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801,
805 (Tex. 2001).  Dismissal is the appropriate disposition when a party lacks standing; it is not a
decision on the merits of the case.  We overrule the Topes' first point of error.
The Topes Failed To Raise A Fact Issue Concerning Substantial Past Contact
            The Topes argue, in their second point of error, the trial court erred in concluding they lacked
"substantial past contact" with the children. 
            We will review de novo the trial court's ruling.
  In Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004), the Texas Supreme Court explained the appropriate
standard of review when evidence is presented in support of a plea to the jurisdiction.
  Whether a
court has subject-matter jurisdiction is an issue of law, which is reviewed de novo.  Tex. Dep't of
Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); Miranda, 133 S.W.3d at 226;
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see SSJ-J, 153
S.W.3d at 134 (standing to bring an original suit affecting the parent-child relationship reviewed
de novo); Chavez v. Chavez, 148 S.W.3d 449, 455 (Tex. App.—El Paso 2004, no pet.) (standing to
intervene reviewed de novo).  When a plea to the jurisdiction challenges the existence of
jurisdictional facts, courts should consider relevant evidence submitted by the parties if necessary
to resolve the issues raised.  Miranda, 133 S.W.3d at 227.  The trial court should examine the
relevant evidence to determine whether a fact issue exists.  Id.  If a genuine issue of material fact
exists, the trial court should not grant the plea to the jurisdiction and the jurisdictional issues should
be resolved by the fact-finder.  Id. at 228.  Any fact issue must be settled by the jury.  See County of
Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).  However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea
to the jurisdiction as a matter of law.  Id. 
            Standing to file an original petition for adoption is statutorily defined under the Texas Family
Code.  Section 102.005 provides:
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; or
(4)  another adult whom the court determines to have had substantial
past contact with the child sufficient to warrant standing to do so.

Tex. Fam. Code Ann. § 102.005 (Vernon 2002).  The Topes contend they have standing to file an
original petition for adoption because they had "substantial past contact" with the children.  We
emphasize that, under Section 102.005(4), the Topes have the same status as any adult with
"substantial past contact."

            What constitutes "substantial past contact" is not statutorily defined, and our search of the
caselaw has not revealed any caselaw definition.  Noting that other subsections of the Texas Family
Code require "possession and control," the Tyler court has interpreted "substantial past contact" as
not requiring control over the child.  Rodarte v. Cox, 828 S.W.2d 65, 69–70 (Tex. App.—Tyler 1991,
writ denied).  Although the Topes urge this Court to develop a standard for evaluating substantial
past contact, we decline to do so.  The existence of "substantial past contact" is inherently a
fact-intensive inquiry for which it will be difficult, if not impossible, to formulate a concise standard
or comprehensive factors.  We agree with the Tyler court that the Legislature intended the standard
to be flexible in order to deal with "inevitable situations which could not be otherwise anticipated
by the drafters."  Id. at 70.
            Although the Topes presented evidence of the difficulties in maintaining contact with their
grandchildren,
 we believe our inquiry should be focused on the amount of actual contact which
occurred, rather than the difficulties encountered in maintaining contact.  The focus is on the amount
of contact the children have had with the adults.  While the Topes may well have done the best they
could in maintaining contact with their grandchildren, the fact remains that the actual contact was
extremely minimal.  The Topes exchanged correspondence
 and monthly telephone calls with Cole
and her children.  Specifically, the Topes would send gifts and cards for various occasions and
holidays.  Most of this correspondence could be more fairly characterized as contact with the mother
rather than contact with the children, particularly considering the ages of the children.
  The Topes
had only physically met their older grandchild on two occasions and had never seen their younger
grandchild.  Lindsay testified she was not even aware she had a second grandchild until March 2004. 
            Under any conceivable definition of "substantial past contact," the Topes lack substantial
contact with the children.  "Substantial" is defined as "of ample or considerable amount, quantity,
size, etc."  Random House Dictionary of the English Language 1897 (unabridged 2nd ed.
1987).  Even assuming the facts alleged by the Topes are true, the evidence does not raise a fact issue
on substantial past contact.  Texas cases in which substantial past contact has been found have
involved considerably more contact than the contact alleged in this case.
  The Topes had only met
the older child twice, and were not even aware their daughter had another child until March 2004
after the children were in custody of CPS.  Although there was evidence of telephone calls, cards,
and letters, such interaction is too minimal under the circumstances of this case to create a fact issue
concerning substantial contact.  Even when viewed in a light most favorable to the Topes, the Topes
did not have substantial past contact with the children as a matter of law.  We overrule the Topes'
second point of error.
Because the Topes Lacked Standing as a Matter of Law, There is no Need to Decide Whether
Trial Court Abused its Discretion in Holding the Hearing Before Discovery

            In their third point of error, the Topes argue the trial court erred in holding a hearing before
discovery occurred.  Because the policy behind discovery is to prevent "trial by ambush,"
 the Topes
argue the trial court abused its discretion in ruling on the issue of whether CPS withheld consent
without good cause before discovery.
            If the party has standing under Section 102.005, the party may still not be eligible to file an
original petition.  If both the child's parents have had their parental rights terminated, standing to file
an original petition for adoption is limited by Section 102.006.  Section 102.006 provides:
(a)  Except as provided by Subsection (b), 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.
(b)  The limitations on filing suit imposed by this section do not apply to a
person who:
(1)  has a continuing right to possession of or access to the child under
an existing court order; or
(2)  has the consent of the child's managing conservator, guardian, or
legal custodian to bring the suit.

Tex. Fam. Code Ann. § 102.006 (Vernon 2002).  CPS argues that the Topes lack standing because
the children's parents had their parental rights terminated before the suit.  However, CPS could
consent to the adoption under one of the exceptions to this limitation on standing.  The Topes argue
that CPS is withholding consent without good cause and that the trial court should have waived the
requirement of consent in the best interests of the children.  See Chapman v. Home, 561 S.W.2d 265,
267 (Tex. Civ. App.—Fort Worth 1978, no writ) (interpreting former Section 16.04). 
            Our disposition of this matter obviates the need to address this point of error.  Section
102.006 merely bars certain parties from filing suit who would otherwise have standing to file the
suit.  See Tex. Fam. Code Ann. § 102.006.  Because the Topes lack standing, as a matter of law,
under Section 102.005, there is no need to decide whether Section 102.006 prohibited the Topes
from filing an original petition for adoption.  Further, there is no need to decide whether the trial
court abused its discretion in ruling on the motion before discovery because the Topes would not
have standing under Section 102.005 even if an exception to Section 102.066 applied.
Conclusion
            We agree with CPS that standing, as a component of subject-matter jurisdiction, can be
challenged by procedural means other than summary judgment.  Even when viewed in a light most
favorable to the Topes, the Topes failed to raise a fact issue concerning whether they had substantial
past contact with the children they sought to adopt.  The trial court did not err in ruling, as a matter
of law, that the Topes lacked standing.  For the reasons stated, we affirm the judgment of the trial
court.
 

                                                                        Jack Carter
                                                                        Justice



CONCURRING IN PART, DISSENTING IN PART

            The majority concludes that standing can be challenged through means other than summary
judgment and that the Topes lacked substantial contact with the children as a matter of law.  I concur
that standing can be challenged through procedural means other than a motion for summary
judgment.  I respectfully dissent in part, however, because I believe a fact issue exists concerning
whether the Topes had substantial past contact with their grandchildren.
A Fact Issue Exists Concerning Substantial Past Contact
            I agree with the majority that the standard of review is de novo.  I disagree, though, that there
is no fact issue concerning substantial past contact.  If a fact issue exists, the trial court is prohibited
from granting the plea to the jurisdiction and the fact issue must be presented to the fact-finder at
trial.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see County of
Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).  The trial court is only permitted to rule on the
fact issue as a matter of law. 
            I also agree with the majority that what constitutes "substantial past conduct" must be a
flexible standard to encompass unforeseeable situations.  See Rodarte v. Cox, 828 S.W.2d 65, 69–70
(Tex. App.—Tyler 1991, writ denied).  And, while the majority admits that the determination of
whether "substantial past contact" has occurred is a fact-intensive inquiry, it concludes the contact
in this case was not sufficient to be substantial contact as a matter of law.  I disagree.
            While there may be those circumstances where "substantial past contact" does not exist as
a matter of law, this case is not one of them.  Reasonable people could disagree on whether regular
correspondence, monthly telephone calls, and the sending of gifts and cards for special occasions and
holidays by grandparents in Montana to their grandchildren in Texas, and personal contact by those
grandparents with one of their grandchildren on two occasions, constitute "substantial past contact." 
This evidence is enough to create a fact issue. 
            The majority points out that, under Section 102.005(4), the Topes have the same status as any
adult with "substantial past contact."  I agree that grandparents are not specifically listed in that
provision as having standing to file a petition for adoption.  I disagree, however, with the majority's
conclusion that the Topes' status as grandparents is of no legal consequence in determining whether
they have standing.  (See slip opinion, p. 8, footnote 6).  Their status as grandparents is a fact that
cannot be ignored, and should be affirmatively considered, along with all other facts, in determining
substantial past contact.  It is at least relevant in weighing the grandparents' testimony on this issue. 
            The majority also states that, "Texas cases in which substantial past contact has been found
have involved considerably more contact than the contact alleged in this case," and cites a number
of such cases in a footnote.  However, the finding of substantial past contact in each and every case
cited was made after a full trial on the merits, not at a preliminary hearing on a plea to the
jurisdiction.  This is what the Topes are entitled to in this case—to have this issue submitted to a
fact-finder.  They may not prevail, but they are entitled to have their day in court.  I would sustain
the Topes' second point of error.
The Trial Court Abused its Discretion in Holding the Hearing Before Discovery
            According to CPS, the Topes lack standing because the children's parents had their parental
rights terminated before the suit.  See Tex. Fam. Code Ann. § 102.006 (Vernon 2002).  CPS,
though, could consent to the adoption under one of the exceptions to this limitation on standing.  See
id.  Despite a prior request to CPS to be notified of any proceedings,
 the Topes were not notified
by CPS concerning the parental termination proceedings.
  The Topes did not learn of the
termination of Melissa Cole's and her husband's parental rights until January 5, 2005.  Lindsay
contacted CPS and was informed there was nothing she could do.  It is undisputed that CPS did not
undertake a home study on the Topes or request that Montana CPS undertake such a study.  The
record contains no evidence concerning why CPS withheld consent to the adoption.  The Topes
argue the trial court should have waived the requirement of consent because Brazoria County is
withholding consent without good cause and waiver of the consent would be in the best interests of
the children.  Chapman v. Home, 561 S.W.2d 265, 267 (Tex. Civ. App.—Fort Worth 1978, no writ)
(court can waive consent under former Section 16.04 of Texas Family Code).  The trial court found
there was no evidence the "movant's failure to consent to respondents' petition for adoption was not
in good faith." 
            I believe the trial court abused its discretion in ruling on the motion before discovery. 
"Whether a determination of subject-matter jurisdiction can be made in a preliminary hearing or
should await a fuller development of the merits of the case must be left largely to the trial court's
sound exercise of discretion."  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  A
trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference
to guiding rules and principles.   Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex. App.—Austin
2004, no pet.).  The trial court may have been able to waive the requirement that a managing
conservator consent to the filing of the adoption petition if the consent was withheld without good
cause and waiver of consent is in the best interest of the child.
  Discovery is intended to prevent
"trial by ambush."  See Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex. 1987). 
Without discovery, a ruling on whether Brazoria County withheld consent without good cause is
premature.  Further, whether the waiver of consent is in the best interests of the children is clearly
a fact issue which must be decided by the fact-finder.  I would sustain the Topes' third point of error.
Conclusion
            Although I concur with the majority that standing can be challenged through procedural
means other than summary judgment and that we should review de novo the trial court's ruling on
standing, I believe a fact issue exists concerning whether the Topes had substantial past contact.  I
believe the trial court erred in dismissing the Topes' suit at this point in the proceedings.  The issue
of "substantial past contact" should have been allowed to proceed to trial.  Further, the trial court
abused its discretion in ruling on the issue of whether CPS withheld consent without good cause
before discovery.  I would reverse the judgment of the trial court and remand for further proceedings. 
            I concur in part and respectfully dissent in part.



                                                                        Donald R. Ross
                                                                        Justice
 
Date Submitted:          April 20, 2006
Date Decided:             May 16, 2006
