in the Interest of A.T., a Minor Child ( 2014 )


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  • Reversed and Remanded and Memorandum Opinion filed July 1, 2014.
    In The
    Fourteenth Court of Appeals
    NO. 14-14-00071-CV
    IN THE INTEREST OF A.T., A MINOR CHILD
    On Appeal from the 246th District Court
    Harris County, Texas
    Trial Court Cause No. 2012-38393
    MEMORANDUM                      OPINION
    Troy J. Wilson and Georgette George-Wilson appeal the trial court’s final
    decree terminating the parental rights of minor child A.T.’s parents and appointing
    the Texas Department of Family and Protective Services (the “Department”) as
    sole managing conservator of A.T. The Wilsons argue on appeal that the trial
    court (1) abused its discretion in striking their petition to intervene because they
    had standing to intervene under Texas Family Code sections 102.003(a)(10) and
    102.004(b); (2) erred in terminating the parental rights of A.T.’s father because
    there was legally insufficient evidence to terminate his rights under the clear and
    convincing evidence standard; and (3) abused its discretion in granting the
    Department an extension of the legislatively prescribed dismissal date in violation
    of Texas Family Code section 262.201. We reverse and remand.
    Background
    A.T.’s parents are F.L.T. (“Mother”) and D.H. (“Father”). A.T. remained in
    the hospital for several weeks after her birth on June 20, 2012, because she was
    “born with bleeding in her brain and has a hole in her heart.”     The Department
    filed an original petition for protection of a child, for conservatorship, and for
    termination in a suit affecting the parent-child relationship on July 5, 2012.
    Mother’s parental rights to several other children previously had been terminated
    “due to non-compliance with medications and refusal to cooperate with [the
    Department].” Mother has a history of schizophrenia and depression.
    The trial court signed an order on July 11, 2012, setting a hearing on the
    Department’s request for temporary orders and appointing an attorney ad litem,
    Wendy Prater (“Ad Litem Prater”), to represent A.T. The trial court designated the
    Department as temporary managing conservator of A.T. after a hearing on August
    2, 2012. Mother was notified of the hearing but did not appear. Father was not
    notified of the hearing and did not appear. In the order, the trial court stated the
    date of dismissal was July 22, 2013, and set a status hearing for September 13,
    2012.
    A.T. was released from the hospital on August 15, 2012, and the Department
    placed her with foster parents, Troy J. Wilson and Georgette George-Wilson. The
    Wilsons already were foster parents to A.T.’s older sister.
    The Department filed a family service plan for Mother and Father with the
    trial court on September 11, 2012; that same day, the Department also filed a status
    2
    report with the court.
    The trial court held a status hearing on September 13, 2012.                          The
    Department attorney and Ad Litem Prater appeared. Mother and Father were
    notified of the hearing but did not appear.                 The trial court approved the
    Department’s family service plan for Mother and Father, and set a permanency
    hearing for January 10, 2013.
    The Wilsons filed a petition to intervene on November 1, 2012; they asserted
    standing on grounds that (1) “they have had substantial contact with the minor
    child since she was less than two months old and a return of the child to the
    biological mother would result in detriment to the emotional and/or physical
    development;” and (2) both Mother and Father “have or will execute an Affidavit
    of Relinquishment naming interveners as prospective adoptive parents and joint
    managing conservators of the child.” The Wilsons sought termination of Mother’s
    and Father’s parental rights based on affidavits of relinquishment, and sought to
    adopt A.T.1
    The Department filed a permanency plan and progress report in the trial
    court on December 20, 2012, in which it stated that the primary permanency goal
    was unrelated adoption and that the foster parents are “willing to adopt the child.”
    The trial court held a permanency hearing on January 10, 2013. The Department’s
    attorney, case worker Courtney Wilson, and Ad Litem Prater appeared at the
    hearing. Mother and Father were notified of the hearing but did not appear. It was
    noted on the January 10, 2013 order that Mother signed an affidavit of
    1
    The record contains an affidavit for voluntary relinquishment that was signed by Mother
    on October 29, 2012, and filed in the trial court on January 10, 2013. The record contains an
    affidavit for voluntary relinquishment that was signed by Father on June 27, 2013, and filed in
    the trial court on June 28, 2013.
    3
    relinquishment on October 29, 2012, which was filed on January 10, 2013. 2 The
    trial court set a permanency hearing for March 28, 2013.
    The Department removed A.T. and her older sister from the Wilsons’ home
    on January 21, 2013, because of allegations of neglect; Georgette acknowledged
    that she had left A.T. and her older sister unattended. A.T. and her sister were
    placed with another foster family.
    The Department filed a permanency plan and progress report in the trial
    court on March 6, 2013, in which it stated that the primary permanency goal was
    unrelated adoption but it did not name any prospective adoptive parents. The
    report also stated that Father was in Harris County jail. The trial court signed a
    permanency hearing order on March 28, 2013, setting the next permanency hearing
    for June 27, 2013. The order stated that the Department attorney, case worker
    Courtney Wilson, and Ad Litem Prater appeared at the hearing; the order did not
    mention Mother and stated that Father did not appear at the hearing although he
    was notified. The trial court also signed an order for DNA testing of Father at the
    Harris County jail.
    The Wilsons filed an original motion to modify temporary orders for
    conservatorship on June 27, 2013, “request[ing] that the court appoint them
    temporary, and later, permanent managing conservators of the child which they
    assert is in the best interest of the child.” The Wilsons stated in their motion that it
    is in the “best interest of [A.T.] that they be appointed sole managing conservators
    2
    In the affidavit, Mother stated: “I understand that the Texas Department of Family and
    Protective Services (DFPS) has been appointed Temporary Managing Conservator of my child
    and I designate DFPS along with Troy J. Wilson and Georgette George-Wilson, the prospective
    adoptive parents, as joint managing conservators of the child. I give my consent for DFPS to
    place my child with Troy J. Wilson and Georgette George-Wilson for adoption. In the event,
    Troy J. Wilson and Georgette George-Wilson decide not to adopt my child, I give my consent for
    DFPS to place my child with another competent family for adoption.”
    4
    of the minor child the subject of this suit and represent that they are prepared to file
    a petition for adoption and have filed a petition to adopt [A.T.]’s sibling.”
    The trial court held a permanency hearing on June 27, 2013, at which the
    Department attorney, case worker Courtney Wilson, Ad Litem Prater, and the
    Wilsons appeared; Mother and Father did not appear. The Department informed
    the court that (1) DNA testing confirmed the paternity of Father; (2) DNA results
    were filed in the trial court; (3) Father was notified of the paternity results at Harris
    County jail; and (4) Father had been released from jail. The trial court appointed
    attorney Robert Johnson to represent Father. After hearing the case worker’s
    testimony about A.T.’s well-being, the court approved the continued placement of
    A.T. with foster parents; set the case for a permanency hearing and trial on July 18,
    2013; and signed an order appointing Robert Johnson as attorney ad litem for
    Father.
    On July 12, 2013, the Wilsons as “intervenors” filed a motion to dismiss the
    Department from the underlying case on grounds that (1) Rule 245 requires 45-
    day-notice of a trial setting; (2) the case had been pending for almost a year and no
    45-day-notice had been given to the parties; (3) there are no extraordinary
    circumstances in that all of the parties had been known for at least 6 months; (4)
    the failure of the Department to get a trial setting and give 45 days notice are not
    grounds for granting an extension; (5) “intervenors” ask the Department be
    dismissed from the case; and (6) Mother and Father have executed affidavits of
    relinquishment in favor of “intervenors” and were going to “execute necessary
    papers maintaining them as managing conservators” of the child.
    The Wilsons filed an amended petition to intervene on July 15, 2013, in
    which they sought permanent joint managing conservatorship of A.T. in addition to
    5
    termination of the parental rights of A.T.’s biological parents and adoption of A.T.3
    Father filed a general denial in response to the Department’s petition in a
    suit affecting the parent-child relationship on July 16, 2013. Father filed a motion
    for continuance on July 17, 2013, arguing that he “needs additional time to
    complete Service Plan and to confer with his attorney.”
    On July 18, 2013, the Wilsons as intervenors filed their objection to the July
    18, 2013 trial setting, stating that (1) their interests and the Department’s interests
    were no longer aligned; (2) intervenors and the Department both seek to become
    managing conservator of the child; (3) intervenors have no confidence the
    Department will protect their interests, which was the reason for the intervention;
    (4) Rule 245 mandates 45 days notice of trial to all parties in a contested matter;
    (5) the matter was not set for trial until June 27, 2013, giving the parties only 21
    days notice of the July 18, 2013 trial setting; and (6) intervenors do not agree to
    waive the 45-day-notice requirement.
    On July 18, 2013, the Department, through its attorney and case worker
    Courtney Wilson, Ad Litem Prater, Father’s attorney, the Wilsons as intervenors,4
    and the Wilsons’ attorney Brendetta Scott appeared in the trial court for the first
    trial setting. After the trial court swore in all the present witnesses, Troy Wilson
    stated: “I would invoke the Rule.” The trial court then asked how Troy had
    3
    In its brief, the Department acknowledges that the “controlling petition” for purposes of
    this appeal is the amended petition to intervene filed on July 15, 2013. The amended petition to
    intervene does not appear in the clerk’s record. A copy is attached to the Department’s brief; no
    party disputes the propriety of referencing the amended petition to intervene or the accuracy of
    the copy attached to the Department’s brief. This court has asked for the clerk’s record to be
    supplemented; in the interest of time due to the deadline for deciding this appeal, we will
    reference the copy attached to the Department’s brief pending supplementation of the clerk’s
    record.
    4
    Troy Wilson stated in court that he was the intervenor and co-counsel, that he would be
    arguing on July 18, 2013, and that his co-counsel Brendetta Scott would be arguing “from
    henceforth.”
    6
    standing as an intervenor. Troy responded that he had been an intervenor since
    November 1, 2012; had substantial contacts with A.T. at the time; and had worked
    with the Department “hand in hand” at the time.
    The trial court proceeded to hear Father’s motion for continuance. Father’s
    attorney stated that he (1) needed additional time to confer with his client; (2) had
    concerns about the affidavit of relinquishment signed by Father on June 27, 2013;
    and (3) wanted to make sure Father understood what he had signed because he did
    not give Father the relinquishment form.          Ad Litem Prater agreed to the
    continuance because the affidavit was signed at 12:30, the same day Father’s
    counsel was appointed, and the form was “definitely” not presented to Father by
    his appointed counsel.
    The trial court then asked Troy: “[W]hether or not you have standing,
    what’s your position?”     Troy responded that he opposed Father’s motion for
    continuance because he and Father’s attorney had visited Father on July 17, 2013;
    Father’s attorney “went through the affidavit” with Father, “asked him all the
    pertinent questions,” and Father stated that he relinquished his parental rights
    voluntarily. The trial court then disqualified Troy because he was testifying to
    facts. The trial court next asked Troy’s attorney for her position on Father’s
    motion for continuance. Troy’s attorney asked to call Troy to the stand but the
    trial court stated: “No, ma’am. I want to know. Well, anyway, it’s granted. Go
    get a mandamus.” Thereafter, the following exchange occurred:
    THE DEPARTMENT: Well, Your Honor, if we grant the continuance
    which . . .
    THE COURT: I already granted it.
    THE DEPARTMENT: Yes, Your Honor. We need an extension.
    THE COURT: The extension is granted.
    TROY WILSON: Okay. Your Honor, let the record show that we —
    7
    we object to the extension.
    THE COURT: Let the record reflect that you told me you were an
    attorney. You’re representing yourself. And now you’re telling me
    about facts. And as I understand the Rules of Ethics and the law, if
    you’re a witness, you can’t be the attorney. And that would be my
    ruling with regard to your position at this time.
    TROY WILSON: Well, Your Honor, I misunderstood what you were
    asking me. You asked me why did I oppose it.
    THE COURT: Anyway, I’m granting the continuance and the
    extension.
    THE WILSONS’ COUNSEL: Your Honor, we object to the
    extension.
    THE COURT: I understand, you object.
    *                   *                  *
    THE COURT: Okay. So, the extension of the dismissal date is
    granted for February 3rd, 2014. Trial date [is] September 19, 2013.
    And the reason for the continuance is, dad, who is relinquishing or
    reconsidering relinquishing his rights has not had an attorney except
    since June 27th. So, he’s not ready for trial. Okay.
    The trial court signed an order retaining the suit on the court’s docket and setting
    the new dismissal date for February 3, 2014.
    On July 18, 2013, the Wilsons as intervenors also filed their objection to any
    extension sought by the Department or any other party, arguing that (1) no
    extraordinary circumstances warranting an extension exist; (2) each party had been
    served for no fewer than 10 months and the Department has known of the
    whereabouts of each party; (3) equity does not bail out those who sit on their
    hands, and an extension would reward the Department for failing to carry out its
    obligations; (4) no service plan had been set up for the parents; (5) the Department
    did not seek DNA testing of Father until the end of March 2013, despite having
    him served in early September 2012; (6) the Department did not obtain an affidavit
    of relinquishment from either parent and was “content to move at a snail’s pace;”
    8
    and (7) despite having terminated the parent-child relationship for six children of
    Mother and alleging that Mother suffered from mental instability, the Department
    never sought to have an attorney appointed for Mother.
    On August 1, 2013, the trial court allowed Father’s attorney to withdraw
    from the case and appointed a new attorney ad litem for Father.
    Ad Litem Prater filed a motion to strike the Wilsons as intervenors and their
    pleadings on October 16, 2013, arguing that the Wilsons (1) failed to ask for leave
    from the trial court to intervene in this case pursuant to Texas Family Code Section
    102.004 despite having “plenty of time to follow the procedure;” and (2) did not
    have substantial past contact because A.T. had only been in the Wilsons’ care for
    five months from August 15, 2012 to January 22, 2013, and the Wilsons did not
    have contact with A.T. from January 22, 2013 to October 16, 2013.
    The Wilsons as intervenors filed their response to the motion to strike on
    October 23, 2013. The Wilsons first argued that Ad Litem Prater should not be
    permitted to challenge the Wilsons’ intervention because she has “never asserted
    until now that she did not receive the Intervention filed on or about November 1,
    2012 or the Amended Intervention filed on or about July 12, 2013” despite
    appearing at several hearings and trial settings at which the Wilsons were present
    and raised issues as intervenors. Second, they contended that the “substantive
    contact required by the Texas Family Code is not determined at the time of trial but
    at the time of filing;” Ad Litem Prater “does not allege that there was not
    substantive contact at the time of filing;” and they maintained “substantive
    contact” even after A.T. was removed from their care.            Third, the Wilsons
    contended that Ad Litem Prater was served with the original and amended petition
    to intervene, and the Wilsons were named by Mother and Father as managing
    conservators in their respective affidavits of relinquishment.
    9
    The Department attorney, case worker Courtney Wilson, Ad Litem Prater,
    the Father’s attorney, the Wilsons as intervenors, and the Wilsons’ attorney
    Brendetta Scott appeared in the trial court at the third trial setting on October 24,
    2013. Ad Litem Prater announced that she had a “Motion to Strike Intervenor.
    That’s set for today as well. That should be heard prior to trial, please.” Ad Litem
    Prater also argued that the trial court could strike the Wilsons on the day of trial
    because “they haven’t asked for leave to ever intervene.”
    The Wilsons contended that the trial court already had granted them leave as
    intervenors at the July 18, 2013 hearing, and that they had substantial contact with
    A.T. The trial court then stated: “Well, I think that’s a matter of proof. So, let’s
    have a hearing on intervention. Yes. All right. Everybody has been sworn. Who
    wants to testify?”
    Ad Litem Prater proceeded to argue that she never received a copy of the
    Wilsons’ petition to intervene of November 1, 2012, and that she found out about
    the Wilsons’ intervention when an amended intervention was filed in July 2013.
    She also argued that A.T. was in the Wilsons’ care for five months until A.T. was
    removed from their home in January 2013, and the Wilsons had had no contact
    with A.T. after the removal.
    Case worker Courtney Wilson testified at the hearing that A.T. had been
    placed in the Wilsons’ care from August 2012 to January 21, 2013. She testified
    that A.T. was removed because there were “some marital issues between the
    Wilsons” and there was an investigation “due to neglectful supervision.”
    According to the case worker, the Wilsons were not allowed to have any contact
    with A.T. after A.T. was placed with another foster family; the Department never
    intended for A.T. to be returned to the Wilsons or to be adopted by the Wilsons.
    Troy testified that he did not see A.T. in person after she was removed from
    10
    the Wilsons’ home, but his wife visited with A.T. at least once a month; according
    to Troy, he saw A.T. through videotapes his wife brought back from visits with
    A.T. Troy claimed to have had regular telephone contact with A.T. but could not
    quantify the telephone contact. Troy testified that he purchased clothes, foods,
    toys, and anything A.T.’s new foster mother requested. Troy also testified that he
    filed the Wilsons’ petition to intervene on November 1, 2012, and then faxed it to
    Ad Litem Prater, the Department, the case worker, and the Father’s attorney on
    November 2, 2012. At that time, A.T. still was in the Wilsons’ care.
    The trial court interjected that Troy “filed the Intervention, and probably had
    standing at that time.” The trial court also stated: “I think you have to prove
    standing today.      He undoubtedly — I don’t know about undoubtedly —
    conceivably had standing from August 2012 to January 22nd, 2013. I don’t make
    that finding, but I would say probably, prima facie or something because you had
    the child in your home. . . . But not since January 22nd, 2013 unless you can
    establish that today. . . . I think that’s where we are.”
    Troy testified that, when he asked for visitation of A.T. at the end of January
    2013, the Department said he could not have visitation with A.T. because of
    “[i]ntake concerns.” Troy acknowledged that he had to give up his foster license in
    January 2013. He testified that the Department knew his wife had visitations with
    A.T. and was “positive” the Department set up her visits.
    Georgette Wilson testified that she had visitations with A.T. “two to three
    times a month” until August 15, 2013, and that the Department did not object to
    visitations; she acknowledged that the Department never gave her permission to
    visit A.T. or set up visitation times after A.T. was removed from her home.5
    5
    Georgette denied that the Department removed A.T. “due to accusations of abuse and
    neglect” but claimed that she “asked for respite” for a weekend. Georgette explained: “My
    11
    Georgette testified that she had contact with A.T.’s current foster parent and
    provided food, clothes, toys, and anything the foster parent said A.T. needed.
    Georgette stated that she held, played, and bonded with A.T. during visitations,
    which usually lasted between 20 and 30 minutes. Georgette also stated that she
    talked to A.T. once a week on the telephone even though A.T. was only one year
    old.
    Georgette claimed that she had frequent communications with the case
    worker, and that the case worker updated her on A.T.’s well-being and progress.
    According to Georgette, she believed that she still would be able to adopt A.T.
    after the Department removed A.T. from her home because the Department (1) told
    her she could adopt A.T. if she divorced Troy; and (2) gave her instructions in that
    regard. She testified that she filed for divorce from Troy after the Department gave
    her instructions, but she nonsuited the divorce once she “realized [she] wasn’t
    going to get [A.T.] back.” She testified that she got an apartment; filed for
    divorce; and went to parenting classes, anger management classes, and therapy.
    After hearing the witnesses’ testimony, the trial court ruled: “Regrettably,
    Mr. and Ms. Wilson, the Court finds you do not have standing.                          So, the
    Intervention is stricken. Sorry.”          The trial court then recessed the trial on
    termination of Father’s and Mother’s parental rights.
    The trial on termination resumed on November 21, 2013. After hearing
    evidence, the trial court granted termination of Mother’s and Father’s parental
    rights and appointed the Department as managing conservator. The trial court
    signed a final decree of termination of Mother’s and Father’s parental rights on
    December 12, 2013. In the decree, the trial court appointed the Department as sole
    understanding of respite is something that is entitled to us if we needed a break, a weekend, day
    or two, whatever it was.”
    12
    managing conservator of A.T.
    The Wilsons filed a notice of appeal on January 3, 2014. The Wilsons filed
    a motion for new trial on January 10, 2014, which was overruled by operation of
    law. In their motion, the Wilsons argued that the trial court erred in striking them
    as intervenors because (1) their petition for intervention had been on file for 51
    weeks; (2) Ad Litem Prater in fact received notice of the Wilsons’ November 1,
    2012 petition to intervene; (3) the trial court acknowledged the Wilsons had
    substantial contact with A.T. at the time they filed their petition to intervene and
    “facts on that particular date are what determines whether or not there exists
    substantial past conduct;” and (4) “they had been named as the managing
    conservator and prospective adoptive parents” by Mother and Father in unrevoked
    affidavits of relinquishment.
    The Wilsons filed an amended notice of appeal on January 17, 2014.
    Analysis
    The Wilsons argue in their first issue that the trial court abused its discretion
    when it struck their petition to intervene in a suit affecting the parent-child
    relationship the Department filed on July 5, 2012. The Wilsons argue that the trial
    court should not have struck their petition because they asserted “standing to
    intervene based on the fact that they had substantial contacts” with A.T. pursuant
    to Texas Family Code section 102.004(b), and were named as conservators in
    Mother’s and Father’s affidavits of relinquishment pursuant to Texas Family Code
    section 102.003(a)(10).
    I.    Standard of Review
    The inquiry here focuses on the statutory prerequisites for standing
    established by the Texas Legislature in this particular context. See In re S.A.M.,
    13
    
    321 S.W.3d 785
    , 788 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also In
    re K.D.H., 
    426 S.W.3d 879
    , 883 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
    A trial court’s standing determination is reviewed de novo. In re S.A.M., 
    321 S.W.3d at 788
    . When, as in this case, the trial court does not make separate
    findings of fact and conclusions of law, we imply that the trial court made all
    necessary findings and we will uphold the trial court’s decision on any legal theory
    supported by the evidence. In re J.C., 
    346 S.W.3d 189
    , 193 (Tex. App.—Houston
    [14th Dist.] 2011, no pet.); see also Mauldin v. Clements, 
    428 S.W.3d 247
    , 262
    (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re S.M.D., 
    329 S.W.3d 8
    , 13
    (Tex. App.—San Antonio 2010, pet. dism’d). We review the entire record to
    determine if the trial court’s implied findings are supported by any evidence.
    Mauldin, 428 S.W.3d at 263; In re S.M.D., 
    329 S.W.3d at 13
    . We may not
    consider a trial court’s oral comments at the hearing or at rendition as a substitute
    for findings of fact and conclusions of law. In re W.E.R., 
    669 S.W.2d 716
    , 716
    (Tex. 1984) (per curiam); In re J.C., 
    346 S.W.3d at 193
    .
    When standing has been conferred by statute, the statute itself serves as the
    proper framework for a standing analysis. In re K.D.H., 426 S.W.3d at 883; In re
    S.M.D., 
    329 S.W.3d at 12
    ; see In re S.A.M., 
    321 S.W.3d at 788
    . “In the context of
    a suit affecting the parent-child relationship, standing is governed by the Texas
    Family Code, and ‘[t]he party seeking relief must allege and establish standing
    within the parameters of the language used in the statute.’” In re S.M.D., 
    329 S.W.3d at 12-13
     (quoting In re H.G., 
    267 S.W.3d 120
    , 124 (Tex. App.—San
    Antonio 2008, pet. denied)); see also In re K.D.H., 426 S.W.3d at 883-85; In re
    S.A.M., 
    321 S.W.3d at 788
    .
    Contrary to the trial court’s statement that the Wilsons were required to
    prove standing at the time of the intervention hearing, the question is whether the
    14
    facts establishing standing existed at the time the petition was filed in the trial
    court. See Mauldin, 428 S.W.3d at 263; In re S.M.D., 
    329 S.W.3d at 13, 16
    ; see
    also In re H.B.N.S., Nos. 14-05-00410-CV, 14-05-00102-CV, 
    2007 WL 2034913
    ,
    at *3-4 (Tex. App.—Houston [14th Dist.] July 17, 2007, pet. denied) (mem. op.)
    (Standing to intervene is measured at the time the intervention is filed.).
    II.   Intervention Based on Texas Family Code Section 102.004(b)
    We first address the Wilsons’ argument that the trial court erred in striking
    their petition to intervene for lack of standing under section 102.004(b). See 
    Tex. Fam. Code Ann. § 102.004
    (b) (Vernon 2014).             The Wilsons argue that the
    evidence establishes they had substantial past contact with A.T. when they filed
    their petition to intervene, and that standing to intervene should be measured when
    the intervention is filed. The Wilsons argue that they had “consistent contact” with
    A.T. even after A.T. was removed from their home; they also contend that the
    “‘substantial contact’ required by the statute does not require actual possession and
    control of the child.”
    The Department responds that the trial court properly struck the Wilsons’
    petition to intervene because section 102.004(b) requires leave to intervene in a
    pending suit affecting the parent-child relationship, and the Wilsons failed to
    obtain leave. The Department also contends that “the Wilsons failed to overcome
    the challenge to the Wilsons’ standing” at the hearing on intervention when they
    failed to request permission to intervene and failed to present sufficient evidence of
    substantial past contact.
    Before we address whether the Wilsons established standing under section
    102.004(b), we will consider the Department’s assertion that section 102.004(b)
    required the Wilsons to request leave to intervene, and that the Wilsons failed to
    request leave in this case.
    15
    Section 102.004(b) provides: “[T]he 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.” 
    Id.
    In interpreting a statute, we determine and give effect to the legislature’s
    intent from the plain and common meaning of the statute. See Columbia Med. Ctr.
    of Las Colinas, Inc. v. Hogue, 
    271 S.W.3d 238
    , 256 (Tex. 2008); In re K.D.H., 426
    S.W.3d at 884. We must not interpret the statute in a manner that renders any part
    of the statute meaningless or superfluous. Columbia Med. Ctr., 271 S.W.3d at 256.
    Based on section 102.004(b)’s plain language, we conclude that a person is
    required to ask the trial court for leave in order to intervene under section
    102.004(b) in a suit affecting the parent-child relationship; a contrary conclusion
    impermissibly would render meaningless the words “the court may grant . . . leave
    to intervene.” The Wilsons therefore were required to request leave to intervene in
    the pending suit affecting the parent-child relationship. See L.J. v. Tex. Dep’t of
    Family & Protective Servs., No. 03–11–00435–CV, 
    2012 WL 3155760
    , at *8 (Tex.
    App.—Austin Aug. 1, 2012, pet. denied) (mem. op.) (The legislature promulgated
    a separate provision governing interventions in family law cases that explicitly sets
    out the circumstances under which a non-parent may ask a trial court’s permission
    to intervene in a suit affecting a parent-child relationship; therefore, Texas Rule of
    Civil Procedure Rule 60 has no applicability in interventions under section
    102.004(b)); Oehlerich v. Tex. Dep’t of Protective & Regulatory Servs., No. 03–
    98–00309–CV, 
    1999 WL 546970
    , at *2 n.3 (Tex. App.—Austin July 29, 1999, no
    pet.) (not designated for publication) (In a case considering intervention pursuant
    16
    to section 102.004(b), the court noted that “[b]efore 1995, [] intervention was
    governed by Texas Rule of Civil Procedure 60, which did not require leave of
    court to intervene and placed the burden of proof on the party moving to strike the
    intervention ‘for sufficient cause.’”).6
    We reject the Department’s assertion that the Wilsons never requested leave
    to intervene. The Wilsons’ amended petition to intervene reasonably can be read
    as a request for leave to intervene. The petition (1) alleges that the Wilsons are
    foster parents and have standing to intervene “because they have had substantial
    contact with [A.T.] since she was less than two months old and a return of [A.T.]
    to the biological mother would result in detriment to the emotional and/ or physical
    development and both the mother and father of the child have executed an
    Affidavit of Relinquishment naming interveners as prospective adoptive parents
    and either sole or joint managing conservators of the child intervention;” (2) seeks
    termination of Mother’s and Father’s parental rights, appointment of the Wilsons
    as permanent joint managing conservators of A.T., and adoption of A.T.; and (3)
    concludes by stating that the Wilsons “ask[] this court to grant the relief requested
    in this intervention.”
    The trial court reasonably could have viewed the Wilsons’ petition to
    intervene as a request for leave to intervene as contemplated by section 102.004(b).
    6
    We see no tension between this holding and the passing reference to Rule 60 in
    Mauldin, 428 S.W.3d at 262. After noting Rule 60, the court went on to apply intervention
    procedures under section 102.004(b) that are consistent with requiring the party seeking
    intervention to establish a basis for standing even in the absence of a motion to strike. Id. We
    likewise see no tension between this holding and the discussion of Rule 60 in Seale v. Tex. Dep’t
    of Family & Protective Servs., No. 01-10-00440-CV, 
    2011 WL 765886
    , at *2-3 (Tex. App.—
    Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.). Rule 60 was applied in Searle because
    “[a]ll parties agreed that Texas Rule of Civil Procedure 60 governs the intervention procedure in
    this case.” 
    Id.
     Seale appropriately refrained from addressing a legal issue regarding the
    mechanics of intervention procedure that was not presented to it based on the parties’ briefing in
    that case. See 
    id.
    17
    However, the trial court never granted the Wilsons leave to intervene; instead, it
    struck their petition for lack of standing at the October 24, 2013 “hearing on
    intervention.” We therefore consider next whether standing to intervene under
    section 102.004(b) was established on this record. If the prerequisites for standing
    under section 102.004(b) were satisfied, then the trial court had discretion to allow
    the Wilsons to intervene in the pending suit affecting the parent-child relationship.
    See 
    Tex. Fam. Code Ann. § 102.004
    (b); L.J., 
    2012 WL 3155760
    , at *7; In re
    S.M.D., 
    329 S.W.3d at 14
    ; In re H.B.N.S., 
    2007 WL 2034913
    , at *3-4.
    In addressing whether the prerequisites under section 102.004(b) were
    satisfied, we look for guidance to the discussion of section 102.004(a) in In re
    K.D.H., 426 S.W.3d at 884. We do so because sections 102.004(a) and 102.004(b)
    both contain unique statutory language conditioning the ability to intervene on the
    proffer of “satisfactory proof to the court” concerning particular intervention
    requirements.
    “Ordinarily, standing is based on the existence of certain facts, not the
    existence of certain proof.” In re K.D.H., 426 S.W.3d at 884. “Section 102.004(a)
    is an unusual provision because, in it, the Texas Legislature confers standing on
    certain [persons] based on the existence of proof rather than the existence of facts.”
    Id.   This observation applies with equal force to intervention under section
    102.004(b).
    Thus, to establish standing to intervene in a pending suit under section
    102.004(b), the legislature requires a person to (1) demonstrate “substantial past
    contact with the child;” and (2) provide “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.” See 
    Tex. Fam. Code Ann. § 102.004
    (b); L.J., 
    2012 WL 18
    3155760, at *7; In re S.M.D., 
    329 S.W.3d at 14
    . Under section 102.004(b), as in
    section 102.004(a), the trial court acts as a gatekeeper in assuring that “satisfactory
    proof” exists. See In re K.D.H., 426 S.W.3d at 885.
    After the trial court announced “let’s have a hearing on intervention,” the
    Wilsons had the burden of providing proof that they had substantial past contact
    with A.T.; they also had the burden of providing “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 [A.T.]’s physical health or
    emotional development.” See 
    Tex. Fam. Code Ann. § 102.004
    (b); L.J., 
    2012 WL 3155760
    , at *7; In re S.M.D., 
    329 S.W.3d at 14-15
    ; see also In re K.D.H., 426
    S.W.3d at 885.
    At the October 24, 2013 intervention hearing, the Wilsons, Ad Litem Prater,
    and the Department presented their respective arguments regarding whether the
    Wilsons had standing to intervene as alleged in their petition. The trial court heard
    evidence presented by the Wilsons, Ad Litem Prater, and the Department
    addressing whether the Wilsons had substantial past contact with A.T.             The
    Wilsons presented evidence that they had substantial past contact with A.T. at the
    time they filed their petition to intervene on November 1, 2012 because A.T. had
    lived in their home from August 2012 to January 2013. The Department and Ad
    Litem Prater presented evidence that there was essentially no contact between Troy
    and A.T. — and very little contact between Georgette and A.T. — after A.T. was
    removed from the Wilsons’ home in January 2013. The evidence presented at the
    evidentiary hearing on intervention did not address whether appointment of Mother
    or Father as managing conservator would “significantly impair the child’s physical
    health or emotional development” at the time the Wilsons’ filed their petition to
    intervene or at any other time.
    19
    Even assuming that the hearing record contains evidence establishing that
    the Wilsons had substantial past contact with A.T. as required by section
    102.004(b), we cannot conclude that the Wilsons met their burden to establish
    “satisfactory proof” that appointment of A.T.’s Mother or Father as managing
    conservator would “significantly impair [A.T.]’s physical health or emotional
    development” as required by section 102.004(b). Therefore, we have no basis to
    disturb the trial court’s denial of leave to intervene and striking of the petition to
    intervene under section 102.004(b). We overrule the Wilsons’ first issue in that
    respect.
    III.   Intervention Based on Texas Family Code Section 102.003(a)(10)
    We next address the Wilsons’ argument that the trial court “abused its
    discretion” in striking their petition to intervene because they had an independent
    basis for standing under section 102.003(a)(10) sufficient to allow intervention.
    See 
    Tex. Fam. Code Ann. § 102.003
    (a)(10) (Vernon 2014).
    According to the Wilsons, and as alleged in their amended petition in
    intervention, they had standing to bring an original suit pursuant to section
    102.003(a)(10) after being named managing conservators in Mother’s and Father’s
    affidavits of relinquishment. The Wilsons argue that intervention is permitted for a
    person who could have brought the original suit; they further contend that they
    “met the requirements of the rule in that they were named as managing
    conservator[s]” in the relinquishment affidavits signed by Mother and Father.
    Section 102.003(a)(10) provides that an original suit may be filed at any
    time by “a person designated as the managing conservator in a revoked or
    unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to
    adoption has been given in writing under Chapter 162.” 
    Id.
    20
    The Wilsons did not assert standing by filing an original suit under section
    102.003(a)(10).    Instead, the Wilsons asserted standing by invoking section
    102.003(a)(10) as a basis for their request to intervene. Although section 102.003
    sets forth the statutory standing bases for filing an original suit rather than
    intervening, we cannot conclude that a person who satisfies the statutory standing
    requirements to file an original suit is nonetheless foreclosed from intervening.
    See In re S.B., No. 02-11-00081-CV, 
    2011 WL 856963
    , at *2-3 (Tex. App.—Fort
    Worth Mar. 11, 2011, orig. proceeding) (mem. op.) (grandparents who satisfied
    section 102.004(a)’s requirements for filing original suit “also have the right to
    intervene in real parties’ original, pending suit to terminate . . . parental rights and
    seek managing conservatorship . . . .”); cf. In re Union Carbide Corp., 
    273 S.W.3d 152
    , 155 (Tex. 2008) (per curiam) (“[A] party may intervene if the intervenor
    could have ‘brought the [pending] action, or any part thereof, in his own name.’”)
    (quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 
    793 S.W.2d 652
    , 657
    (Tex. 1990)).
    Ad Litem Prater moved to strike the Wilsons’ petition to intervene, arguing
    that (1) the Wilsons alleged standing to “intervene based on substantial contact
    with the child, and the claim that the biological parents name[d] them as potential
    adoptive parents,” (2) section 102.004(b) states that a court may grant leave to
    intervene to a person with substantial past contact with the child, but the “Texas
    Family Code makes no mention of a claim that if the biological parents name [the
    Wilsons] as potential adoptive parents this would be a reason to allow standing to
    intervene;” (3) the Wilsons failed to request leave to intervene; and (4) the Wilsons
    do not have substantial contact with A.T. The Wilsons responded to Ad Litem
    Prater’s motion to strike, contending, among other things, that they had standing to
    intervene because they had substantial past contact with A.T. and had been named
    21
    by both biological parents as managing conservators of the child.
    At the hearing on intervention, the Wilsons attempted to establish that they
    had been named specifically as managing conservators in Mother’s and Father’s
    affidavits of relinquishment. The Wilsons argued that the affidavits are “very
    relevant” because they named the Wilsons as “joint managing conservators as well
    as the sole managing conservator.”        The trial court declined to consider the
    affidavits; sustained the Department’s relevancy objection regarding the affidavits;
    and stated: “It’s not relevant. . . . It may be in another proceeding, but [not] on the
    standing issue.” Despite the Wilsons’ attempt at the hearing to (1) argue that they
    have standing to intervene in the case because they had been named managing
    conservators in the parents’ affidavits of relinquishment; and (2) present evidence
    of the parents’ affidavits naming them managing conservators, the trial court
    declined to consider the Wilsons’ argument.
    It was error for the trial court not to consider whether the Wilsons have
    standing to intervene under section 102.003(a)(10) when standing to intervene
    under that section was raised by the Wilsons’ pleadings and the Wilsons’
    arguments at the hearing on intervention. Because the trial court erred in declining
    to consider whether the Wilsons have standing to intervene under section
    102.003(a)(10), we conclude that the trial court erred by striking the Wilsons’
    petition to intervene without considering whether the Wilsons have standing to
    intervene under section 102.003(a)(10). We therefore sustain the Wilsons’ first
    issue in that regard. In light of our disposition of the first issue, we need not
    address the Wilsons’ alternative argument in issue one that there was evidence
    before the court contradicting Ad Litem Prater’s contention that she did not receive
    the Wilsons’ petition to intervene; we also need not address the Wilsons’ second
    and third issues.
    22
    Conclusion
    Having concluded that the trial court properly struck the Wilsons’ petition to
    intervene for lack of standing under section 102.004(b) but erred in failing to
    consider whether the Wilsons had standing to intervene under section
    102.003(a)(10), we reverse the trial court’s judgment, and remand this cause for
    further proceedings consistent with this opinion.
    /s/    William J. Boyce
    Justice
    Panel consists of Justices Boyce, Busby and Wise.
    23
    

Document Info

Docket Number: 14-14-00071-CV

Filed Date: 7/1/2014

Precedential Status: Precedential

Modified Date: 4/17/2021