A. Standing
There are two avenues for a non-parent party to establish standing in a SAPCR:
• Standing to file an original suit
• Standing to intervene in a pending suit
1. Standing to File Original Suit
Tex. Fam. Code Section 102.003 provides that an original suit may be filed at any time by:
• A parent of the child;
• The child through a representative authorized by the court;
• A custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;
• A guardian of the person or of the estate of the child;
• The Department of Family and Protective Services;
• A licensed child placing agency;
• A man alleging himself to be the father of a child filing in accordance with Tex. Fam. Code Chapter 160, subject to the limitations of that chapter, but not otherwise;
• A person other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;
• A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Tex. Fam. Code Chapter 161 or to whom consent to adoption has been given in writing under Tex. Fam. Code Chapter 162;
• A person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition;
• A person who is the foster parent of a child placed by the Department of Family and Protective Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition;
• A person who is a relative of the child within the 3rd degree of consanguinity, as determined by Tex. Gov't Code Chapter 573, if the child's parents are deceased at the time of the filing of the petition; or
• A person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Tex. Fam. Code § 102.0035, regardless of whether the child has been born. Tex. Fam. Code § 102.003(a).
In computing the time necessary for standing under Tex. Fam. Code § 102.003(a)(9), Tex. Fam. Code § 102.003(a)(11), and Tex. Fam. Code § 102.003(a)(12), the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit. Tex. Fam. Code § 102.003(b).
Notwithstanding the time requirements of Tex. Fam. Code § 102.003(a)(12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child. The standing to file suit under Tex. Fam. Code § 102.003(a)(12) applies only to the adoption of a child who is eligible to be adopted. Tex. Fam. Code § 102.003(c).
Common Avenues for Original Standing in CPS Cases
2. Actual Care, Control and Possession
Tex. Fam. Code § 102.003(a)(9) provides standing to a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.
a. Time-Specific in Applicability
• No standing when child in home for only five and a half months at time of filing (In the Interest of E.C., No. 02-13-00413-CV Tex. App. LEXIS 10199 (Tex. App. – Fort Worth [2nd District] September 11, 2014)).
• No standing when child in home for only three months at time of filing (In the interest of C.M.J., No. 02-12-00036-CV (Tex. App. – Fort Worth, December 2012, no pet.)).
b. Elements of “Actual Care, Control, and Possession.” Under Jasek v. Texas Department of Family and Protective Services, the court looked to the composite elements of the care, control, and possession in reaching its decision, considering:
• The individual asserting standing under Tex. Fam. Code § 102.003(a)(9) will have:
1. Lived in a home where the child consistently and frequently stayed overnight;
2. Financially supported the child;
3. Participated in the child's education; and
4. Fed, clothed, and provided health care to the child.
• “Actual control” does not require the authority to make legal decisions for the child (Jasek v. Texas Department of Family and Protective Services, 348 S.W.3d 523 (Tex. App. – Austin 2011, no pet.)).
c. A non-parent's "actual care, control, and possession" of a child does not need to be exclusive to have standing under Tex. Fam. Code § 102.003(a)(9). In the Interest of H.S., 550 S.W.3d 151 (Tex. 2018).
3. Standing to Request Termination and Adoption
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:
• A stepparent of the child;
• 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;
• 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;
• An adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child; or
• 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.
4. Standing for a Grandparent or Other Person
In addition to the general standing to file suit provided by Tex. Fam. Code § 102.003, a grandparent, or other relative of the child related within the third degree of consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof that:
• The order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or
• Both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.004(a).
a. Relatives and degrees of consanguinity:
◦ a parent or child (relatives of the first degree)
◦ a brother, sister, grandparent, or grandchild (relatives of the second degree)
◦ a great-grandparent, great-grandchild, aunt who is a sister of a parent of the child, an uncle who is the brother of a parent of the child, a nephew who is the child of a brother or sister of the child, or a niece who is a child of a brother or sister of the child (relatives of the third degree). Tex. Gov't Code § 573.023(c).
b. Limits on Tex. Fam. Code § 102.004(a) Standing
◦ step-grandfather excluded (In the Interest of E.C., No. 02-13-00413-CV Tex. App. LEXIS 10199 (Tex. App. – Fort Worth [2nd District] September 11, 2014))
◦ step-uncle excluded (In re A.M.S., 277 S.W.3d 92 (Tex. App. – Texarkana 2009, no pet.))
◦ great-aunt or great-uncle excluded (In re N.L.D., 412 S.W.3d 810 (Tex. App. – Texarkana 2013, no pet.))
c. Proving Significant Impairment pursuant to Tex. Fam. Code § 102.004(a)
◦ significant impairment of child's physical health and emotional development found with evidence of parental drug use and criminal convictions and incarceration. (In re K.D.H., 426 S.W.3d 879 (Tex. App. – Houston [14th Dist.] April 3, 2014, no pet.))
◦ significant impairment of child's physical health and emotional well-being found with evidence of physical and emotional abuse of the child even if the last alleged incident occurred months before the filing of the petition when the parent's ideas regarding discipline had not changed during the period and the parent had not received any counseling or other services during that time to mitigate the risk of continued abuse. In re McDaniel, 408 S.W.3d 389 (Tex. App. – Houston [1st Dist.] 2011)
◦ significant impairment of emotional development found where a parent fails to send their child to school on a regular basis and fails to provide necessary therapeutic interventions for a child with poor school performance and behavioral issues. Maudlin v. Clements, 428 S.W.3d 247 (Tex. App. – Houston 2014)
d. Applicability and Implications of Tex. Fam. Code § 102.004(a) in CPS Cases
◦ avenue for grandparents and other relatives within the requisite degree of consanguinity to file for custody of a child in an investigation or Family Based Safety Services stage of a CPS case
◦ an original action for conservatorship under Tex. Fam. Code § 102.004(a) does not have the rehabilitative and service requirements of a CPS case or the same strict timelines