in the Interest of K.T.R., a Child

                                  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


                           DISSENTING OPINION


       Context matters. From this simple tenant comes the most fundamental rule of

statutory construction. That rule is that, as a reviewing court, we must construe a statute

so that all parts have meaning. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 

 (Tex. 2008) (stating that court "must not interpret the statute in a manner

that renders any part of the statute meaningless or superfluous"). If a construction of

one part of the statute guts the meaning or purpose of another provision, we look at the

broader context to see why and construe the statute so that all parts have meaning.

       In this particular situation, the literal words of one small part of Section 102.005

seem to support the Court's analysis. That provision states "an adult who has had actual

possession and control of the child for at least two months during the three-month period
immediately preceding the filing of the petition" can force themselves into court as a party

for participation in the suit which will determine the child's future. See TEX. FAM. CODE

ANN. §102.005(3).

        But in the context of the statute, the legislature was very restrictive on when and

how foster parents could involve themselves beyond being a witness, in the lives, and

litigation, involving their foster children. This is by design. This has a purpose. The only

reason the foster parent has any relationship with the child is because of the State's effort

to protect the child. To achieve that result, the State has to be able to control some aspects

of who can participate and how the legal process involving the child develops. To do this

it takes time and a plan. That plan sometimes requires the placement of the child with

foster parents. But the State cannot stop the natural process of bonding that occurs

between a child and someone who provides the essentials of life, including love. Thus,

the State has a strong interest in controlling, or limiting, the foster parent's ability to

become involved in, AKA interfere with, the plan the State has for the child. 1

        Due to time constraints, however, I will not extend this opinion with an exhaustive

discussion of the legal analysis that supports my opinion of the way to construe the

statute. The mother's brief contains such an analysis, thus, I have attached as an appendix




1 It is not that I understand why the trial court removed the child a day or two before the foster parents
would have had standing to intervene in the suit. But that is not the legal question before us and the
legislature has set the policy by putting a hard timeframe and giving no discretion in this situation. The
trial court made a decision that had the specific purpose of not letting the foster parents obtain standing.
It is not for us to write in another exception to the limited circumstances for the benefit of a seemingly well-
intentioned foster parent.
In the Interest of K.T.R., a Child                                                                Page 2
to this dissenting opinion an excerpt of that brief. 2 While it is not expressed in the manner

that I might have written it as an opinion of the Court, the brief contains a thorough

analysis of the legislative history and why and how the statute was amended over time

and thus came to be written as it is. Moreover, it explains why the minor part of the

statute in Section 102.005(3) upon which the Court relies is simply not available to foster

parents to insert themselves into the life of a child under the State's care. It addresses the

precedent and why the case relied upon so heavily by the Court simply stopped short in

its analysis necessary to make the statute work as a whole. In summary, it is because if

one provision is cut out of the statute and made to stand alone, it means foster parents

can use it to inject themselves into the litigation involving their foster child, and other

provisions of the statute becomes wholly meaningless. The mother's analysis, however,

gives meaning to all parts of the statute. In that context, it all works together.

        Because the Court construes and applies only one provision of the statute and

ignores what it does in the context of the statute as a whole, and thus lets the foster

parents intervene in the suit involving their foster child, I respectfully dissent. 3

                                                           TOM GRAY
                                                           Chief Justice


2The TDFPS has likewise filed a thorough brief that discusses the legal analysis and expresses some of the
concepts in a different manner than the mother. But I do not find it necessary to append excerpts of the
TDFPS's brief, but, like all briefs filed with the court, it is available on the Court's website.

3 If what the Court does here is the proper analysis, we missed it completely when the Court summarily
denied the mandamus petition filed almost a year ago by the foster parents. See In re Heuer, No. 10-22-
00003-CV, 

 (Tex. App.—Waco Jan. 21, 2022,) (orig. proceeding). Unfortunately,
the parties were thus made to suffer through an entirely pointless trial and the child's life remains in limbo.
The legal issue involved in this case cries out for a definitive interpretation by the Supreme Court of Texas.
In the Interest of K.T.R., a Child                                                              Page 3
Dissenting Opinion delivered and filed December 21, 2022




In the Interest of K.T.R., a Child                         Page 4
                 Appendix to Dissenting Opinion, In Re K.T.R., a Child


                                     Argument

1.    The trial court properly granted the motions to strike and the pleas
      to the jurisdiction.

      Although Appellants brief their challenges to the trial court’s ruling on

the motions to strike separately from their challenges to its ruling on the

pleas to the jurisdiction, these complaints are closely interrelated because

they both rest on the issue of whether Appellants have standing under

section 102.005 of the Family Code. A proper exercise in statutory

construction reveals that they do not.

      Accordingly, the trial court properly struck their plea in intervention

and properly granted the Department’s and Mother’s1 pleas to the

jurisdiction challenging Appellants’ suit to terminate the parent-child

relationship and adopt K.T.R.

A.    The principles for statutory construction depend on the clarity of the
      statutory text

      The Court’s primary goal in construing statutes is to give effect to the

Legislature's intent. Fort Worth Transp. Auth. v. Rodriguez, 

,




1      Counsel refers to Appellee A.B. as “Mother” and to the child by her initials. See
TEX. R. APP. P. 9.8(b).

Appellee Mother’s Brief                                                         Page 11
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


838 (Tex. 2018); TIG Premier Ins. v. Pemberton, 

 (Tex.

App.—Waco 2003, pet. denied). The Court should apply the plain meaning

of the text unless the Legislature has provided a different definition, a

different definition is required by the context, or the plain meaning would

lead to an absurd result. Rodriguez, 

; In re State ex rel.

Parsons, No. 10-17-00216-CV, 

, at *3 n.4 (Tex. App.—Waco

Jan. 9, 2019, orig. proceeding) (mem. op.).

      Context is important. The Court reads statutes contextually to give

effect to every word, clause and sentence. Rodriguez, 

. The

Court thus considers the statutory scheme as a whole and how the statute in

question fits within the broader statutory scheme. The Court strives to give

the provision a meaning that is in harmony with other related statutes.

Rodriguez, 

; accord TIG Premier Ins., 

.

      “Put differently, our objective is not to take definitions and

mechanically tack them together . . .[;] rather, we consider the context and

framework of the entire statute and meld its words into a cohesive reflection

of legislative intent.” 

 at 839 (quoting Cadena Comercial USA Corp. v. Tex.

Alcoholic Beverage Comm’n, 

 (Tex. 2017)).



Appellee Mother’s Brief                                                 Page 12
                   Appendix to Dissenting Opinion, In Re K.T.R., a Child


         However, if the statute is ambiguous, the Court may resort to extrinsic

    aids to construe the language at issue.2 See Rodriguez, 

;

     accord TIG Premier Ins., 

. A statute is ambiguous when its

words are susceptible to 2 or more reasonable interpretations and legislative

    intent cannot be discerned from the text itself. Rodriguez, 

.

         Section 311.023 of the Code Construction Act sets out the extrinsic aids

a court may consider when construing a statute, including:

            1) object sought to be attained;



2       But see TEX. GOV’T CODE § 311.023 (extrinsic aids may be considered by court
“whether or not the statute is considered ambiguous on its face”); Atmos Energy Corp. vi
City of Allen, 

 (Tex. 2011) (same); In re State ex rel. Parsons, No. 10-17-
00216-CV, 

, at *3 n.4 (Tex. App.—Waco Jan. 9, 2019, orig. proceeding)
(same).

       However, the Supreme Court has more recently strongly suggested that it is
constitutionally impermissible to consider extrinsic aids when construing an
unambiguous statute.

         [S]ection 311.023 of the Code Construction Act permits courts to consider a
         statute's legislative history whether or not the statute is considered
         ambiguous on its face. Although this section may grant us legal permission,
         not all that is lawful is beneficial. Constitutionally, it is the courts'
         responsibility to construe statutes, not the legislature's. In fulfilling that
         duty, we do not consider legislative history or other extrinsic aides to
         interpret an unambiguous statute because the statute's plain language most
         reliably reveals the legislature's intent. We have therefore repeatedly
         branded reliance on extrinsic aids as improper and inappropriate when
         statutory language is clear.

Tex. Health Presbyterian Hosp. of Denton v. D.A., 

 (Tex. 2018) (quotation
marks, footnotes, and citations omitted).

Appellee Mother’s Brief                                                              Page 13
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


           2) circumstances under which the statute was enacted;
           3) legislative history;
           4) common law or former statutory provisions, including laws on
              the same or similar subjects;
           5) consequences of a particular construction;
           6) administrative construction of the statute; and
           7) title (caption), preamble, and emergency provision.

TEX. GOV’T CODE § 311.023.

B.    If section 102.005 is unambiguous, its plain language read in context
      demonstrates that Appellants do not have standing

      Like the statutes under consideration in Rodriguez, the language of

section 102.005, standing alone, “is fairly easily understood.” See Rodriguez,

. But the Court must construe section 102.005 in light of

“the statutory scheme as a whole” and must strive to assign it “a meaning

that is in harmony with other related statutes.” Id.; accord TIG Premier Ins.,

. When the Court does so, the Court should conclude that

sections 102.005(3) and (5) are properly construed as not applying to foster

parents.

1.    The Court must consider the statutory scheme as a whole

      Chapter 102 of the Family Code governs standing in suits affecting the

parent-child relationship. While Chapter 102 contains several statutes




Appellee Mother’s Brief                                                 Page 14
                  Appendix to Dissenting Opinion, In Re K.T.R., a Child


touching upon standing, sections 102.003, 102.004 and 102.005 are the critical

statutes to be considered in this analysis.

      For a foster parent to have standing in a suit affecting the parent-child

relationship, the child must have been placed in their home by the

Department for at least 12 months. This requirement applies whether they

file an original SAPCR or intervene in a pending SAPCR.

      Section 102.003(a)(12) includes this 12-month placement requirement

for standing to file an original SAPCR by a foster parent.3 TEX. FAM. CODE §

102.003(a)(12).

      Section 102.004 provides that a foster parent may not intervene in a

pending SAPCR unless they meet the 12-month placement requirement. Id.

§ 102.004(b), (b-1). Section 102.004 provides in its entirety:

      (a) In addition to the general standing to file suit provided by
      Section 102.003, a grandparent, or another relative of the child
      related within the third degree by consanguinity, may file an
      original suit requesting managing conservatorship if there is
      satisfactory proof to the court that:




3       Section 102.003(c) does provide an exception to this 12-month placement
requirement for a foster parent who “has been approved to adopt the child,” if the child
“is eligible to be adopted.” TEX. FAM. CODE § 102.003(c). This exception does not apply to
Appellants.

Appellee Mother’s Brief                                                           Page 15
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


         (1) the order requested is necessary because the child's
         present circumstances would significantly impair the child's
         physical health or emotional development; or

         (2) both parents, the surviving parent, or the managing
         conservator or custodian either filed the petition or consented
         to the suit.

      (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).

      (c) Possession of or access to a child by a grandparent is
      governed by the standards established by Chapter 153.

TEX. FAM. CODE § 102.004.

      Finally, section 102.005 provides in its entirety 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;



Appellee Mother’s Brief                                                 Page 16
                Appendix to Dissenting Opinion, In Re K.T.R., a 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.

TEX. FAM. CODE § 102.005.

2.    Read together, the statutes in Chapter 102 restrict standing for foster
      parents to situations where the child has been placed with them for
      at least 12 months

      Under section 102.003(a)(12), foster parents have standing to file an

original SAPCR only after the child has been placed with them for 12

months. Under section 102.004, foster parents have standing to intervene in

a SAPCR only after the child has been placed with them for 12 months.

Under section 102.005, foster parents have standing to adopt a child if they

have petitioned to adopt a sibling of the child (because they have standing

to do so). These are the only standing provisions in Chapter 102 that apply

to foster parents.


Appellee Mother’s Brief                                                 Page 17
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      The Legislature added subsection (b-1) in 2017. Act of May 19, 2017,

85th Leg., R.S., ch. 341, § 1, 

, 986. Thus far, the

Dallas Court is the only appellate court to conduct an in-depth analysis of

the meaning and import of this statutory provision. That court has

concluded on several occasions that section 102.004 is the exclusive means

by which foster parents may intervene in a pending SAPCR. E.g. In re M.B.,

No. 05-19-00971-CV, 

, at *3 (Tex. App.—Dallas Sept. 19,

2019, pet.) (mem. op.); In re Nelke, 

 (Tex. App.—Dallas

2019, orig. proceeding) (“Section 102.004(b) applies to any person who seeks

to intervene in a pending suit even if that person may have had standing to

bring an original suit.”). The court further observed that “Subsection (b-1)

limits when a foster parent may be granted leave to intervene.” Nelke, 

 n.5. Cf. In re C.E.L., No. 09-21-00294-CV, 

, at

*3-4 (Tex. App.—Beaumont Mar. 3, 2022, pet. filed) (mem. op.) (briefly

addressing 102.004 before holding that foster parents had standing under

section 102.005(3) and implicitly rejecting the Department’s argument that




Appellee Mother’s Brief                                                 Page 18
                 Appendix to Dissenting Opinion, In Re K.T.R., a Child


102.004(b-1) demonstrates legislative intent to exclude foster parents from

having standing under section 102.005(3)).4

      Appellants’ counsel apparently agrees (or used to) that foster parents

may not intervene in pending CPS litigation unless the child has been placed

in their home for 12 months. “Foster parents are now prohibited from

intervening in ongoing CPS litigation unless the CPS case has been extended

beyond the statutory limit of 12-months due to ‘extraordinary’

circumstances.” Stephen Carl, Foster Parent Standing and Intervention in CPS

Litigation: The History and the Impact of Texas’s 2017 Amendment, 71 BAYLOR L.

REV. 673, 674 (2019).

    • Section 102.004 “now bars a foster parent from intervening until the
      same twelve-month statutory requirement of Section 102.003(a)(12) is
      met.” Carl, Foster Parent Standing, 71 BAYLOR L. REV. at 687.

    • “[The 2017 amendment] makes it almost impossible for a foster parent
      to intervene in ongoing CPS litigation.” Carl, Foster Parent Standing, 71
      BAYLOR L. REV. at 689.

       Most of the subdivisions of section 102.005 plainly do not apply here.

Subdivision (1) applies only to step-parents; TEX. FAM. CODE § 102.005(1);




4       The Beaumont Court repeated an identical analysis a month later without even
citing its prior decision in C.E.L. See In re S.C., No. 09-21-00325-CV, 

, at
*3-4 (Tex. App.—Beaumont Apr. 7, 2022, no pet.) (mem. op.).

Appellee Mother’s Brief                                                            Page 19
                 Appendix to Dissenting Opinion, In Re K.T.R., a Child


subdivision (2) applies only to persons with whom a child has been placed

for adoption; 

 § 102.005(2); and subdivision (4) applies only to persons

who have adopted a sibling of the child the subject of the suit or foster

parents who have petitioned to adopt the sibling. Id. § 102.005(4).

      Section 102.005(3) grants standing to “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.” Id. § 102.005(3). If

this provision applied to foster parents like Appellants, it would render

useless sections 102.003(a)(12) and 102.004(b-1) which both expressly require

foster parents to have had possession of the child for 12 months before they

have standing.

      This Court recognized as much in Torres where the Court considered

the interaction between sections 102.003(a)(12) and 102.003(a)(9). See In re

Torres, 

 (Tex. App.—Waco 2020, orig. proceeding). There,

foster parents sought to intervene in a suit where grandparents had filed a

petition to modify a prior SAPCR order. The trial court denied the

grandparents’ plea to the jurisdiction and motion to strike the intervention.

Torres, 614 S.W.3d at 800-01. The grandparents sought mandamus relief with

this Court. Id. at 801.

Appellee Mother’s Brief                                                  Page 20
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      The foster parents had had possession of the children on multiple

occasions. During an initial suit filed by the Department of Family and

Protective Services in 2018, the foster parents had had possession of the

children “for approximately ten and a half months.” Id. at 800. After the

children were returned to their mother, they moved to Oklahoma. During

that period, the foster parents had ongoing communication with the children

by telephone and video conferencing, and they had possession of the

children for 14 days in July and 7 days in November 2019 in addition to other

weekend visits. Id.

      The cumulative total of possession by the foster parents was less than

12 months. Instead, they argued that they had standing under section

102.003(a)(9) which grants standing to “a person, other than a foster parent,”

who has possession of the child for at least 6 months. Id. at 802 (citing TEX.

FAM. CODE § 102.003(a)(9)). The Court rejected this contention.

      The status held by a party at the time of the filing of their
      pleading is not determinative for purposes of establishing
      standing. To hold otherwise would give any foster parent who
      had children in their home for more than six but less than twelve
      months from whom children were removed the ability to file a
      petition in intervention solely because they were no longer the
      foster parents.



Appellee Mother’s Brief                                                 Page 21
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      Therefore, we hold that the Speedys were required to either
      establish that they had “actual care, control, or possession” of the
      children for six months exclusive of their time as foster parents
      pursuant to Section 102.003(a)(9) or that they had “actual care,
      control, or possession” of the children for twelve months
      including the time they were foster parents pursuant to Section
      102.003(a)(12).

Id. at 803.

      The same principle should apply to Appellants. When a person’s

possession of a child is solely because of their status as a foster parent, they

should not be permitted to claim standing under a different statute than

section 102.003(a)(12) unless they have had possession of the child for a

sufficient period “exclusive of their time as foster parents.” See id.

      Finally, section 102.005(5) confers standing on “another adult” whom

the trial court determines “has had substantial past contact with the child

sufficient to warrant standing to do so.” TEX. FAM. CODE § 102.005(5).

      To begin with, this subdivision refers to “another adult” which

suggests that it means an adult other than those identified in the first 4

subdivisions of the statute. Because subdivision (4) refers specifically to

foster parents, this would necessarily exclude them from inclusion in

subdivision (5).



Appellee Mother’s Brief                                                  Page 22
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      Next, the Court should hold, consistent with Torres, that Appellants

must establish “substantial past contact” under section 102.005 “exclusive of

their time as foster parents.” See Torres, 614 S.W.3d at 803. Otherwise, this

would render sections 102.003(a)(12) and 102.003(b-1) meaningless.

      Finally, with respect to section 102.005 generally, that statute provides

standing to file a suit only for termination and/or adoption. TEX. FAM. CODE

§ 102.005. Appellants thus contend that section 102.005 is the more specific

provision than section 102.003 and controls here because it applies to a

specific category of suits. However, their focus is misplaced. The question of

standing focuses on whether a particular person or entity may bring the

claim at issue, i.e., whether they are “personally aggrieved.” See

DaimlerChrysler v. Inman, 

 (Tex. 2008). Thus, the

analysis should look to the person or entity at issue rather than the claim. In

this context, section 102.003 is the more specific statute because of its highly

specific laundry list of persons who have standing to file a SAPCR.

      Accordingly, when this Court reads sections 102.005(3) and (5) in the

context of the statutory scheme for standing established in Chapter 102, the

Court should conclude that foster parents such as Appellants cannot assert

standing under these provisions unless they can establish possession of or

Appellee Mother’s Brief                                                 Page 23
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


 substantial contact with the child separate and apart from their possession

of and contact with the child as foster parents. See Torres, 614 S.W.3d at 803.

      Here, Appellants cannot establish standing outside of their time as

foster parents of K.T.R. Thus, they cannot establish standing under section

102.005(3) or (5).

C.    If section 102.005 is ambiguous, the relevant extrinsic aids
      demonstrate that Appellants do not have standing

      A compelling argument can be made that section 102.005 is ambiguous

for each of the reasons already stated but particularly because the parties

here advance 2 reasonable competing interpretations of the statute. See

Rodriguez, 

 (“A statute is ambiguous if its words are

susceptible to two or more reasonable interpretations and we cannot discern

legislative intent from the language alone.”).

      If the statute is ambiguous, this Court can resort to extrinsic aids to

ascertain the Legislature’s intent. See Rodriguez, 

; accord TIG

Premier Ins., 

. The legislative history for Chapter 102 is the

most important extrinsic aid for the Court’s consideration. See TEX. GOV’T

CODE § 311.023(3).




Appellee Mother’s Brief                                                 Page 24
                  Appendix to Dissenting Opinion, In Re K.T.R., a Child


       1. Legislative history—section 11.03

       The 69th Legislature enacted Texas’s current framework for standing

in SAPCR’s by its enactment of the former section 11.03.

       Section 11.03 provided a 4-part framework for standing. Under section

11.03(a), the Legislature promulgated a laundry list of persons or entities

with standing to file an original SAPCR. Act of May 25, 1985, 69th Leg., R.S.,

ch. 802, § 1, 

, 2842 (amended 1989).5 That original

laundry list included: (1) a parent; (2) the child through an authorized

representative; (3) a custodian or person with visitation rights under a court

order; (4) a guardian; (5) a governmental entity; (6) any authorized agency;

(7) an alleged or probable father of an illegitimate child; (8) “a person who

had actual possession and control of the child for at least six months

immediately preceding the filing of the petition”; or (9) a person designated



5       The Legislature amended section 11.03(a) twice. In 1989, the Legislature amended
section 11.03(a)(7) to include more modern and politically correct nomenclature for a
child born out of wedlock, namely, granting standing to “a man alleging himself to be the
biological father of a child who has no presumed father.” Act of May 29, 1989, 71st Leg.,
R.S., ch. 375, § 2, 

, 1477-78. In 1993, the Legislature added a 10th
category of persons to the laundry list, namely, “a person with whom the child and the
child's guardian, managing conservator, or parent have resided for at least six months
immediately preceding the filing of the petition and the child's guardian, managing
conservator, or parent is deceased at the time of the filing of the petition.” Act of May 7,
1993, 73d Leg., R.S., ch. 168, § 1, 

, 321.


Appellee Mother’s Brief                                                            Page 25
                 Appendix to Dissenting Opinion, In Re K.T.R., a Child


as managing conservator in a relinquishment affidavit or given written

consent to adopt. 

      Section 11.03(b) authorized a grandparent or “any other person

deemed by the court to have had substantial past contact with the child” to

file an original suit for managing conservatorship.6 

      Section 11.03(c) authorized a grandparent or “any other person” with

substantial past contact to intervene in a pending SAPCR and request

possessory conservatorship. 

      Finally, section 11.03(d) authorized the following persons to file an

original suit for adoption or for termination and adoption:

      (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 immediately preceding the filing of the
      petition;

      (3) an adult who has had actual possession and control of the
      child for at least two months during the three-month period
      immediately preceding the filing of the petition;




6     The 73rd Legislature also amended section 11.03(b) by deleting other persons with
“substantial past contact” and conferring standing solely on grandparents to seek
managing conservatorship. Act of May 7, 1993, 73d Leg., R.S., ch. 168, § 2, 

, 322.

Appellee Mother’s Brief                                                           Page 26
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


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

      These four provisions were to be read together. See Rodriguez, 

. Subsection (a) provided a laundry list of 9 (later 10) categories

of persons or entities who had standing to file an original SAPCR. Subsection

(b) provided standing for a suit seeking managing conservatorship for

grandparents and other persons with “substantial past contact.”

Grandparents were not in the laundry list of subsection (a). The “other

persons” contemplated by subsection (b) should necessarily exclude those

included in the laundry list because they already have standing to bring an

original SAPCR. If a person included in the laundry list were considered to

have also been included under subsection (b), that would render the general

standing provision meaningless with respect to those persons. The same is

true for “intervention standing” under subsection (c).

      The same is also true for standing of “adults” under subsection (d) to

file suit for termination and/or adoption. Again, a stepparent (identified in

(d)(1)) is not included in the laundry list. The terms “adult” and “another

adult” should likewise be construed to exclude those identified in the

Appellee Mother’s Brief                                                 Page 27
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


laundry list. If a person included in the laundry list were considered to have

also been included under subsection (d), that would render the general

standing provision meaningless with respect to those persons.

      This reading of section 11.03(d) also directly addresses Appellants’

contention that section 102.005 is a more specific provision that controls here

because it applies to a specific category of suits. In this context, section

102.003 (and its predecessor article 11.03(a)) is the more specific statute

because of its highly specific laundry list of persons who have standing to

file a SAPCR.

      Accordingly, in construing the former section 11.03, the Court must

conclude that the term “adult” or “another adult” as set out in section

11.03(d) refers to persons other than those included in the laundry list of

section 11.03(a).

      2. Legislative history—the 1995 recodification

      When the 74th Legislature repealed the former Title 2 of the Family

Code and recodified it as Title 5, the Legislature broke the respective

standing provisions of former section 11.03 out into 3 separate statutes—

sections 102.003, 102.004 and 102.005. See Act of Apr. 6, 1995, 74th Leg., R.S.,

ch. 20, § 1, secs. 102.003-102.005, 

, 125. This was

Appellee Mother’s Brief                                                  Page 28
                  Appendix to Dissenting Opinion, In Re K.T.R., a Child


a nonsubstantive recodification. Jones v. Fowler, 

 (Tex.

1998).

         Accordingly, the legislative decision to divide the standing provisions

of former section 11.03 into 3 different statutes did not alter their meaning.

         3. Legislative history—subsequent amendments

         Since 1995, the Legislature has enacted several significant7

amendments to these statutes that impact their construction.

         In 1997, the Legislature gave foster parents standing to file an SAPCR

if the child had been in their home for at least 18 months. Act of May 19,

1997, 75th Leg., R.S., ch. 575, § 3, 

, 2012-13.

         Two years later, the Legislature reduced the length of placement to 12

months for foster parents—enacting the statute as it currently exists. Act of

May 30, 1999, 76th Leg., R.S., ch. 1390, § 2, 

,

4696-97.

         In 2007, the Legislature amended section 102.005 to include a standing

provision for “an adult who has adopted, or is the foster parent of and has




7      For the sake of completeness, the Legislature has enacted additional amendments
to the relevant statutes beyond the ones discussed here, but the amendments discussed
herein have the most relevance to the issues presented.

Appellee Mother’s Brief                                                       Page 29
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


petitioned to adopt, a sibling of the child.” Act of May 28, 2007, 80th Leg.,

R.S., ch. 1406, § 3, 

, 4800-01.

      And finally, in 2017, the Legislature amended section 102.004 to

provide that a foster parent may not intervene in a pending SAPCR unless

the child has been placed with them for at least 12 months. Act of May 19,

2017, 85th Leg., R.S., ch. 341, § 1, 

, 986.

      The 1997 amendment giving foster parents standing for the first time

to file any kind of original SAPCR was significant because it added foster

parents to the laundry list and specified the conditions under which foster

parents may file a SAPCR. At that point (based on the construction discussed

above regarding former section 11.03), foster parents could assert standing

in a SAPCR only if they qualified according to the terms of section

102.003(a)(12). Because they were added to the laundry list, the provisions

of sections 102.004 and 102.005 no longer applied.

      The 1999 amendment shortened the period during which foster

parents may qualify for standing.

      The 2007 amendment created standing for a unique subset of foster

parents to file a termination and/or adoption suit, namely, any foster parent

who “has petitioned to adopt . . . a sibling of the child.”

Appellee Mother’s Brief                                                    Page 30
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      Finally, the 2017 amendment restricted when foster parents may

intervene in a SAPCR as opposed to filing an original SAPCR. As this Court

has observed, a person’s standing to intervene is generally commensurate

with their standing go file an original suit. In re A.C., No. 10-15-00192-CV,

, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.).

The 2017 amendment codified this principle for foster parents. Thus, a foster

parent may not intervene in a pending SAPCR unless they have standing

under section 102.003(a)(12). TEX. FAM. CODE § 102.004(b-1); see M.B., 

, at *3; Nelke, 

 n.5; see also Carl, Foster Parent

Standing, 71 BAYLOR L. REV. at 674, 687, 689.

      Accordingly, when the Court considers the legislative history of these

statutes, the Court should conclude that foster parents must establish their

standing under section 102.003(a)(12). Further, because foster parents are

included in the laundry list of persons with standing in SAPCR cases under

section 102.003, the provisions of sections 102.004 and 102.005 apply to them

in only two respects. First, section 102.004 limits their ability to intervene in

pending SAPCR’s. And second, section 102.005(4) provides standing for a

narrow subset of foster parents who have petitioned to adopt a sibling of the

child whom they seek to adopt. The provisions of section 102.005 referring

Appellee Mother’s Brief                                                  Page 31
                 Appendix to Dissenting Opinion, In Re K.T.R., a Child


to an adult with “actual possession and control of the child” and “another

adult” with “substantial past contact” simply do not apply to foster parents.8

D.    Section 102.004 is the only means of intervention in a SAPCR for
      foster parents

      Appellants claim that section 102.004(b) does not apply to persons

seeking relief other than possessory conservatorship. Appellants’ Petition at

33. They are wrong.

      “Section 102.004(b) applies to any person who seeks to intervene in a

pending suit even if that person may have had standing to bring an original

suit.” Nelke, 

.

      Subsection (b) provides:

      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.




8      This Court reached the opposite conclusion in A.C., but the Court issued that
decision before the 2017 amendments to section 102.004. In re A.C., No. 10-15-00192-CV,

, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.).

Appellee Mother’s Brief                                                        Page 32
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


TEX. FAM. CODE § 102.004(b).

      Subsection (b) begins with a sentence prohibiting the filing of an

original suit seeking only possessory conservatorship by non-parents. But

the remainder of the subsection grants standing to non-parents to intervene

in a SAPCR if they have “substantial past contact with the child” and if they

make a showing that appointment of one or both parents as managing

conservator(s) would significantly impair the child.

      The statute thus contemplates that the non-parent intervenor would be

seeking, at minimum, appointment as managing conservator because the

parents are unsuitable to serve in this capacity. Texas courts have regularly

observed and have long held that non-parents may intervene under

subsection (b) and seek managing conservatorship. E.g., In re S.M.D., 

 (Tex. App.—San Antonio 2010, pet. dism’d by agr.); Whitfield v.

Whitfield, 

 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

In re Hidalgo, 

 (Tex. App.—Texarkana 1996, no writ).

      The trial court properly struck Appellants’ petition in intervention to

the extent Appellants sought to intervene under section 102.005 of the

Family Code because section 102.004(b) provides the sole basis for

intervention by a foster parent in a SAPCR.

Appellee Mother’s Brief                                                 Page 33
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


E.    C.E.L. was wrongly decided

      Appellants rely heavily on the decision of the Beaumont court in C.E.L.

to support their contentions. However, based on the above analyses, this

Court should conclude that the Beaumont court’s cursory analysis failed to

fully address or consider the relevant statutes and their legislative history

and, as a result, is a poorly reasoned decision.

      The Beaumont court did pay lip service to arguments similar to those

raised by the Mother and the Department in this case. The court observed,

“The Department argues that foster-family specific amendments to sections

102.03 and 102.004 of the Family Code demonstrate the Legislature's intent

to exclude foster parents from section 102.005(3).” C.E.L., 

, at

*2.

      Then, the court reviewed the statutory history of sections 102.003,

102.04 and 102.005 since the Legislature first granted standing to foster

parents in 1997. 

, at *3-4. But the court failed to consider

the statutory predecessor to these statutes.

      Next, the court cited 2 cases before concluding that foster parents can

establish standing to file a suit for termination and/or adoption under



Appellee Mother’s Brief                                                 Page 34
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


section 102.005(3) if they have had possession of the child for at least 2

months. 

, at *4.

      The Beaumont court first cited a 2009 decision of the Amarillo court

that held with no analysis that foster parents can establish standing under

section 102.005(3). 

 (citing In re J.H.M., No. 07-07-00109-CV, 

 (Tex. App.—Amarillo Dec. 29, 2009, no pet.) (mem. op.)). The

Amarillo court held:

      Foster parents now have a couple of avenues to the courthouse.
      Under § 102.003 of the Family Code, they can bring an original
      suit affecting the parent-child relationship (SAPCR) if the child
      was placed with them by the “Department of Protective and
      Regulatory Services” and has lived with them “for at least
      [twelve] months ending not more than [ninety] days preceding
      the date of the filing of the petition.” TEX. FAM. CODE ANN. §
      102.003(a)(12) (Vernon Supp. 2009). Under § 102.005 of the same
      Code, foster parents who have not had possession of the child
      for at least twelve months, ninety days before they file suit may
      nevertheless have standing to request termination and adoption
      if they have “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.” Id. § 102.005(3).

J.H.M., 

, at *4.

      Curiously, no court other than the Beaumont court has cited J.H.M. for

the proposition that a foster parent has standing to seek termination and/or




Appellee Mother’s Brief                                                 Page 35
                  Appendix to Dissenting Opinion, In Re K.T.R., a Child


adoption under section 102.005(3) if they have had possession of the child at

least 2 months—not even the Amarillo court itself.

         Further, the Amarillo court issued this decision before the Legislature

amended section 102.004 to add subsection (b-1) and prevent foster parents

from intervening in a SAPCR unless they have had possession of the child

for at least 12 months.

         And finally, the Amarillo court issued this decision without any

meaningful effort to engage in statutory construction considering the

statutory scheme as a whole or its legislative history.

         For each of these reasons, the Amarillo court’s decision in J.H.M.

provides at best questionable support for the Beaumont court’s decision in

C.E.L.

         The Beaumont court also relied on a 2019 decision of the Fort Worth

court that does NOT involve foster-parent intervention. C.E.L., 

, at *4 (citing In re Y.J., No. 02-19-00235-CV, 

 (Tex.

App.—Fort Worth Dec. 19, 2019, pet. denied) (mem. op.)). In Y.J., a couple

(the “Bs”) who had already adopted Y.J.’s half-brother intervened in a

termination suit initiated by the Department on behalf of Y.J. The Bs sought

termination of parental rights and to adopt Y.J. under section 102.005(4).

Appellee Mother’s Brief                                                   Page 36
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


Because Y.J. is Native American, the Navajo Nation opposed the

intervention. Instead, the Navajo Nation asked that Y.J. be placed with her

mother’s great aunt who is also a Native American. Y.J., 

,

at *3. The trial court ultimately terminated the mother’s parental rights and

appointed the Bs and the great aunt as joint managing conservators. 

, at *4.

      On appeal, the Navajo Nation challenged the intervention by the Bs

under section 102.005(4) and argued that the statute authorizes only an

original suit and only for termination and/or adoption (as opposed to

conservatorship). The Fort Worth court rejected these contentions for several

reasons. 

, at *5-7. Among other things, the court

recognized that the Bs had standing to file an original suit under section

102.005(4) because they had adopted Y.J.’s half-brother. Their standing was

not as foster parents but as persons who had adopted the child’s sibling.

Here, however, Appellants cannot establish original standing under section

102.005(4). Nor could the appellants in C.E.L. Cf. C.E.L., 

, at

*4. Thus, the decision in Y.J. offers little support for the Beaumont court’s

decision in C.E.L.



Appellee Mother’s Brief                                                 Page 37
                Appendix to Dissenting Opinion, In Re K.T.R., a Child


      Regardless, the Beaumont court concluded by holding that, because

the foster parents in that case had had possession of the children for at least

2 months, they had standing under section 102.005(3)—even though they did

not have standing under section 102.003(a)(12) or 102.004(b-1). However,

this construction does not properly give consideration to the entire statutory

scheme and renders sections 102.003(a)(12) and 102.004(b-1) meaningless.

      The Beaumont court’s decision is poorly reasoned, and this Court

should decline to follow it.

F.    This Court should affirm the judgment

      For each of the reasons stated, Appellants failed to establish standing

under section 102.005(3) or (5). The trial court thus properly struck their plea

in intervention and properly granted the Department’s and Mother’s pleas

to the jurisdiction challenging Appellants’ suit to terminate the parent-child

relationship and adopt K.T.R.

      Accordingly, this Court should affirm the judgment. See TEX. R. APP. P.

43.2(a).




Appellee Mother’s Brief                                                 Page 38