Full Opinion (html_with_citations)

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-22-00219-CV

                         IN THE INTEREST OF K.T.R.,
                                  A CHILD


                           From the 74th District Court
                            McLennan County, Texas
                           Trial Court No. 2020-3858-3


                         MEMORANDUM OPINION

      K.T.R.’s former foster parents (the Fosters) appeal the trial court’s order granting

the motions to strike their petition in intervention and petition for adoption. We will

reverse and remand.

                                      Background

      The underlying facts are not disputed. K.T.R. was removed from Mother by the

Department of Family and Protective Services (the Department), and the associate judge

granted the Department temporary managing conservatorship over K.T.R. K.T.R.’s

father is deceased. The Department placed K.T.R. with the Fosters on December 4, 2020.

On December 1, 2021, Mother filed a Motion for Change in Placement. A hearing on
Mother’s motion was held on December 2, 2021. The Fosters were not given ten days’

notice of the hearing but were allowed to participate after receiving knowledge of the

hearing although they had not intervened in the case. The parties conceded at the hearing

that, factually, the Fosters had past substantial contact with K.T.R., but the Department

and Mother did not concede that, legally, the Fosters had standing. The associate judge

granted Mother’s motion and ordered that K.T.R. be placed in another foster home (the

Second Foster).

        On December 3, 2021, the Department removed K.T.R. from the Fosters’ home

pursuant to the associate judge’s order. On December 6, 2021, the Fosters filed a petition

in intervention; they also filed an original petition for adoption in a new cause number.

In both petitions, the Fosters recited Sections 102.003(a)(12) and 102.005(5) of the Family

Code as the basis for standing. See TEX. FAM. CODE ANN. §§ 102.003(a)(12), 102.005(5). On

December 9, 2021, the Fosters then filed a first amended petition in intervention and a

first amended petition to terminate and adopt. In both amended petitions, the Fosters

based standing on Sections 102.003(a)(12), 102.005(3), and 102.005(5).           See id. §§

102.003(a)(12), 102.005(3), 102.005(5). The associate judge consolidated both cases on

December 13, 2021. On December 29, 2021, the associate judge then signed an order

granting the following: (1) the Joint Motion to Strike and Objection to Petition in

Intervention filed by the Department and the Attorney Ad Litem; (2) the Motion to Strike

and Objection to Petition in Intervention filed by Mother; (3) the Plea to the Jurisdiction

and Motion to Strike the Fosters’ petition for adoption filed by the Attorney Ad Litem;

and (4) the Plea to the Jurisdiction and Motion to Strike the Fosters’ petition for adoption

In re K.T.R.                                                                          Page 2
filed by the Department. The Fosters did not request a de novo hearing of the associate

judge’s order.

        On January 10, 2022, the Fosters filed an original petition for mandamus in this

Court in Cause Number 10-22-00003-CV, seeking revocation of the associate judge’s

order removing K.T.R. from their care and the associate judge’s order granting the

motions to strike and pleas to the jurisdiction. The Fosters’ petition was denied on

January 21, 2022. See In re Heuer, No. 10-22-00003-CV,
2022 WL 195659
, at *1 (Tex. App.—

Waco Jan. 21, 2022, orig. proceeding) (mem. op.).

        On March 7, 2022, the Fosters filed a second petition in intervention. The second

petition referenced only Section 102.005(5) as the basis for standing. See TEX. FAM. CODE

ANN. § 102.005(5). The Department and Mother filed motions to strike the second petition

in intervention. The associate judge declined to consider the Fosters’ second intervention,

noting “the recent intervention alleges no new facts, nor different statutes from those

already litigated.” The Fosters then requested a de novo hearing before the referring

court, identifying the issue to be reviewed as: “The Court erred in issuing her findings

which has the effect of granting the Motions to Strike Intervenor’s Petition in Intervention

that was filed on March 7, 2022.” After a de novo hearing, the district court signed an

order on May 13, 2022, granting the motions to strike the second petition in intervention.

        The associate judge’s final order appointed Mother and the Second Foster, a non-

relative, as joint managing conservators of K.T.R. and removed the Department as

temporary managing conservator. Mother was granted supervised visitation with K.T.R.



In re K.T.R.                                                                          Page 3
for three hours on the first and third Saturdays of the month. The Fosters then initiated

the present appeal.

                                                  Issues

        The Fosters present the following issues: 1

        1)      Whether the trial court abused its discretion in granting the Motions
                to Strike?

        2)      Whether the trial court abused its discretion in granting the Plea to
                the Jurisdiction?

        3)      Whether Appellants’ due process rights were violated when the trial
                court conducted a placement change hearing without providing
                Appellants with 10 days’ notice as required by Texas Family Code §
                263.0021 and subsequently denied Appellants standing to intervene,
                in part, based upon the argument that Appellants only had “11
                months and 30 days” of time with the child?

                                         Issues One and Two

        Both Issues One and Two concern whether the Fosters have standing.

AUTHORITY

        Subject-matter jurisdiction is essential to the authority of a court to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443
 (Tex. 1993).

               Standing is a component of subject-matter jurisdiction and is a
        constitutional prerequisite to maintain[ing] suit. See In re H.S.,
550 S.W.3d 151, 155
 (Tex. 2018). In assessing standing, the merits of the underlying
        claims are not at issue. See [id.] (“Here, the merits of Grandparents’
        claims—that is, whether they should be appointed Heather’s managing
        conservators with the right to designate her primary residence—have not
        yet been considered by any court and are not before us.”).

1Although the Fosters do not concede that they did not have custody of K.T.R. for “12 months ending not
more than 90 days preceding the date of the filing of the petition” as required by Section 102.003(12) of the
Family Code, the Fosters do not raise this issue on appeal. See TEX. FAM. CODE ANN. § 102.003(a)(12). The
Fosters also do not assert they had standing under Section 102.003(c) as K.T.R. had not been approved for
adoption. Id. § 102.003(c).

In re K.T.R.                                                                                          Page 4
               The party asserting standing bears the burden of proving that issue.
        In re A.D.T.,
588 S.W.3d 312
, 316 (Tex. App.—Amarillo 2019, no pet.); In re
        S.M.D.,
329 S.W.3d 8, 13
 (Tex. App.—San Antonio 2010, pet. dism’d). In
        assessing standing, a reviewing court should look to the pleadings but may
        consider relevant evidence of jurisdictional facts when necessary to resolve
        the jurisdictional issues raised. In re H.S.,
550 S.W.3d at 155
. Standing is a
        question of law that the court reviews de novo.
Id.
 If a party does not have
        standing, the court is deprived of subject matter jurisdiction, and the merits
        of the party’s claims cannot be litigated or decided. [Id.]

In re Torres,
614 S.W.3d 798
, 801 (Tex. App.—Waco 2020, no pet.).

               As a general rule, an individual’s standing to intervene is
        commensurate with that individual's standing to file an original lawsuit.
        Whitworth v. Whitworth,
222 S.W.3d 616, 621
 (Tex. App.—Houston [1st Dist.]
        2007, no pet.). A party’s standing to file an original suit affecting the parent-
        child relationship is typically governed by sections 102.003 (general
        standing), 102.004, and 102.005 (additional standing for others) of the Texas
        Family Code. See TEX. FAM. CODE ANN. §§ 102.003–.005 (West 2014).

In re A.C., Nos. 10-15-00192-CV & 10-15-00193-CV,
2015 WL 6437843
, at *9 (Tex. App.—

Waco Oct. 22, 2015, no pet.) (mem. op.).

               Standing in a suit affecting the parent-child relationship (“SAPCR”)
        is governed by the Family Code. See In re E.G.L.,
378 S.W.3d 542, 547
 (Tex.
        App.—Dallas 2012, pet. denied). A party seeking relief in a SAPCR must
        allege and establish standing within the parameters of the language used in
        the relevant statute. See In re Tinker,
549 S.W.3d 747, 751
 (Tex. App.—Waco
        2017, orig. proceeding). “Because standing to bring a SAPCR is governed
        by statute, we apply statutory-interpretation principles in determining
        whether a plaintiff falls within the category of persons upon whom such
        standing has been conferred.” In re H.S.,
550 S.W.3d at 155
.

In re Torres, 614 S.W.3d at 801.

                . . . When interpreting statutes, we presume the Legislature’s intent
        is reflected in the words of the statute and give those words their fair
        meaning. In re C.J.N.–S.,
540 S.W.3d 589, 591
 (Tex. 2018). We analyze
        statutes “as a cohesive, contextual whole, accepting that lawmaker-authors
        chose their words carefully, both in what they included and in what they
        excluded.” Sommers v. Sandcastle Homes, Inc.,
521 S.W.3d 749, 754
 (Tex.

In re K.T.R.                                                                                Page 5
        2017); see also R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean
        Water,
336 S.W.3d 619, 628
 (Tex. 2011) (“When the Legislature uses a word
        or phrase in one portion of a statute but excludes it from another, the term
        should not be implied where it has been excluded.”).

In re H.S.,
550 S.W.3d at 155
.

        If the language of the statute is unambiguous, we do not consider extrinsic aids

such as legislative history “because the statute’s plain language most reliably reveals the

legislature’s intent.” Tex. Health Presbyterian Hosp. of Denton v. D.A.,
569 S.W.3d 126, 136

(Tex. 2018); see also EBS Sols., Inc. v. Hegar,
601 S.W.3d 744
, 749 (Tex. 2020) (“We turn to

extrinsic sources only if the statute is ambiguous or if applying the statute’s plain

meaning would produce an absurd result.”).

        As applicable here, Section 102.003 of the Family Code, entitled “General Standing

to File Suit,” provides, in part:

        (a) An original suit may be filed at any time by:

               ....

               (9) a person, other than a foster parent, who has had actual care,
               control, and possession of the child for at least six months ending not
               more than 90 days preceding the date of the filing of the petition; [or]

               ....

               (12) a person who is the foster parent of a child placed by the
               Department of Family and Protective Services in the person’s home
               for at least 12 months ending not more than 90 days preceding the
               date of the filing of the petition;

        ....

        (c) Notwithstanding the time requirements of Subsection (a)(12), a person
        who is the foster parent of a child may file a suit to adopt a child for whom
        the person is providing foster care at any time after the person has been

In re K.T.R.                                                                              Page 6
        approved to adopt the child. The standing to file suit under this subsection
        applies only to the adoption of a child who is eligible to be adopted.

TEX. FAM. CODE ANN. § 102.003.

        As applicable here, Section 102.004 of the Family Code, entitled “Standing for

Grandparent or Other Person,” provides, in part:

        (b) An 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, subject to the requirements of Subsection (b-
        1) if applicable, 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 chapter 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.

        (b-1) A foster parent may only be granted leave to intervene under
        Subsection (b) if the foster parent would have standing to file an original
        suit as provided by Section 102.003(a)(12).

Id. § 102.004.

        As applicable here, Section 102.005 of the Family Code, entitled “Standing to

Request Termination and Adoption,” provides, in part:

        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:

                 ....

                 (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]

                 ....

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

In re K.T.R.                                                                            Page 7
Id. § 102.005.

DISCUSSION

        The Fosters asserted standing under both Sections 102.005(3) and (5) in their first

amended petition in intervention and first amended petition for adoption and

termination. The Fosters possessed standing because they met the requirements of

Section 102.005(3)—they had actual possession and control of K.T.R. “for not less than

two months during the three-month period preceding the filing of” their first amended

petition for termination and adoption. Id. § 102.005(3). Because they had standing to file

suit, they also had standing to intervene. In re A.C.,
2015 WL 6437843
, at *9.

        The plain language of the Family Code allows foster parents to establish standing

other than through Section 102.003(a)(12). See In re C.E.L., No. 09-21-00294-CV,
2022 WL 619670
, at *2 (Tex. App.—Beaumont Mar. 3, 2022, pet. denied) (mem. op.). In re C.E.L. is

a factually similar case in which the Beaumont Court of Appeals concludes that Section

102.005(3) does not exclude foster parents from filing a petition for termination and

adoption.
Id.
 at *3–4. While the Legislature amended Section 102.005 in 2007, “the

Legislature neither limited subsection (3) to exclude foster parents nor made the other

subsections exclusive means through which a foster parent could petition for termination

and adoption.” Id. at *4.

        Our Torres opinion is not in conflict because Torres involves an analysis of

subsections (a)(9) and (a)(12) of Section 102.003 rather than the interplay between Sections




In re K.T.R.                                                                          Page 8
102.003(a)(12) and 102.005(3) and (5).        See TEX. FAM. CODE ANN. §§ 102.003(a)(9),

102.003(a)(12), 102.005(3), 102.005(5); see also In re Torres, 614 S.W.3d at 803.

         After a de novo review, we conclude that the Fosters had standing under Section

102.005(3) to file their first original petition for termination and adoption, which also gave

them standing to intervene in the SAPCR filed by the Department. The trial court erred

in determining that the Fosters did not have standing. We sustain the Fosters’ first and

second issues. We express no opinion regarding the ultimate merits of their claims.

         Because we sustain the Fosters’ first and second issues, we need not address Issue

Three.

                                         Conclusion

         Having sustained the Fosters’ first and second issues, we reverse the Final Order

in Suit Affecting the Parent-Child Relationship signed on June 21, 2022, and we remand

the case to the trial court for further proceedings not inconsistent with this opinion.




                                            MATT JOHNSON
                                            Justice

Before Chief Justice Gray,
       Justice Johnson, and
       Justice Smith
Reversed and remanded
Opinion delivered and filed December 21, 2022
[CV06]




In re K.T.R.                                                                            Page 9