B. Standing to Intervene in a Pending Suit
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 deemed 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 the 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. Tex. Fam. Code § 102.004(b).
1. Applicable to Pending SAPCRs
• A grandparent or other person can only utilize Tex. Fam. Code § 102.004(b) in SAPCRs that have not yet resulted in a final order.
• In the context of CPS cases, the SAPCR is no longer pending once DFPS is appointed PMC of the child.
2. Pleading Requirements
• The grandparent or other person must establish that they have had substantial past contact with the child; and
• The grandparent or other person must present satisfactory proof to the court that the appointment of the parent or parents as sole or joint managing conservators would significantly impair the child's physical health and emotional development. Tex. Fam. Code § 102.004(b).
3. Case Law related to Substantial Past Contact
Courts have applied the standard definition of “substantial” from the Random House Dictionary as “of ample or considerable amount, quantity, size, etc.” and have evaluated the amount of actual contact and not the difficulties of the intervening party maintaining contact. (In re C.M.C., 192 S.W.3d 866 (Tex. App. – Texarkana 2006, no pet.))
“Substantial past contact” has been found to involve more than seeing a child regularly during his or her life. Substantial past contact has been shown by parties who have “frequently cared for the children, lived nearby, and spent a great deal of time with the family.” (Blackwell v. Humble, 241 S.W.3d 707 (Tex. App. – Austin 2007, no pet.))
Relatives who have cared for a child for as few as 7 weeks have been found to have substantial past contact. The Court's analysis focused on the caretaker's daily supervision of the child during that time and found the intervening party to have established substantial past contact in undertaking the daily functions of legal custody during that time. (In re A.L.W., No. 02-11-00480-CV (Tex. App. – Fort Worth Nov. 8, 2012, pet. denied)(mem. op.)).
In a case of first impression, the Dallas Court of Appeals has held that grandparents, as opposed “other persons,” are not required to establish substantial past contact under Tex. Fam. Code § 102.004(b). See In re Nelke, 573 S.W. 3d 917, 922-23 (Tex. App – Dallas 2019, no pet h.).
Special Issue: The determination of whether substantial past contact exists is a fact-intensive inquiry. The determination is not statutorily defined and case law does not establish a clear factual framework for judges to make the determination. Deference is usually given to the trial court's assessment.
4. Evidence that Appointment of Parent(s) as Managing Conservator Would Significantly Impair the Child's Physical Health and Emotional Development
A person with substantial past contact with a child will be unable to show evidence that the appointment of a parent as the managing conservator would cause significant impairment when facts show only speculation of potential harm if the parent is appointed conservator. (In re S.M.D., 329 S.W.3d 8 (Tex. App. – San Antonio, 2010, pet. dismissed))
5. “Significant Impairment” During Reunification Phase of a CPS Case
Alleged father who had independently raised the child for two and a half years submitted to paternity testing and was dismissed as a party to the case after genetic testing ruled him out as the father. He intervened alleging substantial past contact. He was denied leave to intervene because he failed to show that the appointment of the mother as sole managing conservator would significantly impair the child's physical health and emotional development. Testimony offered by the Department at multiple hearings had shown that she had complied with all court orders and service plan requirements, that the child had already been placed with her and that the Department was recommending dismissal of the case. The Court of Appeals found no abuse of discretion in the trial court's refusal to grant leave to intervene. (L.J. v. Texas Department of Family & Protective Services, No. 03-11-00435-CV (Tex. App. – Austin, August 1, 2012, pet. denied) (mem. op.))